Provenance research—now and later (First installment)

This “think-aloud” is neither the first nor the last on a topic that has become, despite its innocuous phrasing, far more contentious than it ought to be.

For now, it is best to throw out some questions for which answers are not necessarily forthcoming.

Why all the fuss about provenance research?

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 was 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?

I write these words simply because it is the right thing to do: 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”?

MoMA gets a discount on German Expressionists

Cafe Couple, Otto Dix
Source: MoMA

by Marc Masurovsky

Want a great deal on a painting by German Expressionist Otto Dix?

One such work--“Café Couple/Paar in Café”--belonged to noted German art dealer and collector Karl Buchholz who had sought refuge from Nazi Germany and greener pastures in New York in the mid-1930s, where money and opportunities flowed in the blossoming American market for Expressionists and other European modernists. The Alien Property Custodian (APC), an enforcement arm of the US Department of the Treasury, seized the painting and other works belonging to Buchholz after he was labeled as an “enemy alien”. His property became subject to “vesting” after the United States declared war on Germany following the Japanese raid on Pearl Harbor on December 7, 1941. Eventually, the US government made these types of seized assets available for purchase by anyone interested in bidding on them.

The Museum of Modern Art (MoMA) in New York acquired the Dix painting for a song in 1945. What a deal!

In 1952, the APC sold another Dix painting--Workers' Children [Arbeiterkinder] from 1922--as part of the "vested" Buchholz collection.  The painting was on display at the UWM Art Museum in Milwaukee, Wisconsin, in November-December 1986, as part of a larger exhibit entitled "Reactions to the war: European art, 1914-1925."

Many works by Otto Dix entered private and public collections in Weimar Germany but became subject to seizure and forced sale under the Third Reich due to their "degenerate" status.  One such painting belonged to Curt Glaser, an eminent art historian and critic under Weimar who lost his job within months of Hitler's accession to power in January 1933 and was forced to sell his property, including a vast collection of works of art and books in a now-notorious forced sale in June 1933.  One of those items sits in the Freiburg Museum of Modern Art.

An imaginary conversation about Grosz v. MOMA

"Max Hermann-Neisse"

All rights reserved, Estate of George Grosz,

 licensed by VAGA, New York;

 Image courtesy of Museum of Modern Art

In the August 24, 2011, issue of the New York Times, Patricia Cohen wrote an insightful article about the ramifications of the Grosz v. MOMA case which has pitted a venerable cultural mecca of New York City against the family of one of the 20th century’s most celebrated social and cultural critics, Georg Grosz. As the case bumbles along in favor of the Museum of Modern Art, it is worth musing over a number of points raised by Patricia Cohen. The floor is open for commentary and critiques alike. For further details, please refer back to Patricia Cohen’s article:

Patricia Cohen: “Museums are breaking their own ethics codes and causing the U.S. government to break its international commitments by invoking our courts to resolve Holocaust-era art claims on technical grounds rather than on the merits,” said Jennifer Anglim Kreder, co-chairwoman of the American Society of International Law’s Interest Group on Cultural Heritage & the Arts.

American museums have an obligation not to acquire or come into the possession of stolen cultural property, especially when they are the beneficiary recipients of Federal tax breaks which allow them, among other things, to raise unlimited sums to better serve their public and their donors. Unless otherwise stated, the National Stolen Property Act (NSPA) remains the basic legal instrument by which one can order the seizure of stolen cultural property assuming one can prove beyond a doubt that the property is in fact stolen. For the past five years, the Federal government has successfully intervened in art ownership disputes through seizures of looted cultural items which have resulted in the restitution of those items to their rightful owners.

The US government has been playing with legal fire for decades by declining to apply its postwar international commitments to its own citizens by which property under its jurisdiction which is proven to have been stolen as a result of acts of duress, persecution, or other forms of discrimination during the Nazi era, should be returned to their rightful owners. To date, no one has sought to compel the Federal government to right those wrongs. Neither has anyone thought to challenge the Federal largess to American museums as a means of pressuring them into disgorging their looted cultural assets.

Patricia Cohen: The museum, which acquired the works in the 1950s, declined to comment because the case is being litigated. But it has maintained in court documents that, regardless of the timing issue, it has diligently researched the artworks’ provenance and has found no evidence that the works were looted by the Nazis or any basis for disputing their legitimate ownership.

Affidavits filed on behalf of the plaintiffs in Grosz v. MOMA show a pattern of deceit, distortion and withholding of key documents on the part of MOMA and its legal team. In other words, MOMA has not done its utmost to research the provenance of the works.

“Republican Automation”

All rights reserved, Estate of George Grosz,

licensed by VAGA, New York;

 Image courtesy of Museum of Modern Art

Patricia Cohen: Raymond J. Dowd, the Groszs’ lawyer, counters that the lower court considered inadmissible evidence and also failed to take into account a 1998 federal law that was intended to help Holocaust-era victims recover their assets.

Section 202 of The Holocaust Victims Redress Act (HVRA) of 13 February 1998 states the following:

“It is the sense of the Congress that consistent with the 1907 Hague Convention, all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.” 

By definition, a “sense of” declaration by Congress is non-binding and merely reflects the fact that a majority in Congress shares this view, without going any further. Hence, it is a bit wrong-headed to state that the Act is there to help victims recover their assets. It exists to exert moral suasion on a government that refuses to become engaged in the act of restitution of looted cultural assets. The same would apply to the Washington Principles of December 1998 and to the Terezin Declaration of June 2009. Interestingly enough, the HVRA did not invoke the 1954 Hague Convention.

Patricia Cohen: The Grosz heirs say that Flechtheim was only temporarily caring for the three works and that he was forced to sell or abandon his holdings because of the climate of terror created by Hitler’s regime. The accompanying paper trail that shows bills of sale, liquidation papers and letters, they add, was later fabricated or distorted to mask illicit dealings.

The Grosz case hinges in part on the historical definition of a so-called forced sale, a commercial act that would not have occurred had circumstances been entirely different, in other words, had there not been a pervasive environment of anti-Jewish persecution and harassment sponsored by the National Socialist State. Or, put more simply, if Georg Grosz were alive today, he would have answered “no” to the question: “Mr. Grosz, would you have sold your works of art had the Nazis not persecuted and harassed you for what you are and who you are?”

Patricia Cohen: MOMA, which obtained the two oil paintings and the watercolor at different times in the early 1950s, has said it was unaware of any doubts about the chain of ownership. Grosz himself saw the portrait of Herrmann-Neisse hanging on the museum’s walls in 1953, and wrote to his brother-in-law, “Modern Museum exhibits a painting stolen from me (I am powerless against that) they bought it from someone, who stole it.” Grosz, who died in 1959, never contacted the museum about regaining possession, however.

Therein lies the rub. Did Georg Grosz know that he was within his rights to claim the painting once he saw it hanging on MOMA’s walls? Was he aware of statutory limits placed on claims for stolen property? How omniscient does a victim have to be in order to knock some commonsense into the insensitive souls of museum officials bent on safeguarding what they view to be rightfully theirs even if the historical evidence does not bear them out?

Patricia Cohen: During the Nazi regime about 100,000 artworks were looted from public and private collections, including forced sales.

That estimate is indefensible, uncorroborated, and historically rootless. There were at the very least 100,000 artworks forcibly removed from German-occupied France alone. Since there were 19 countries that were invaded, occupied, or otherwise under Axis control between 1933 and 1945, you can do the math.

Patricia Cohen: To address some of the issues such looting raised, the United States and more than 40 other nations adopted the 1998 Washington Conference Principles on Nazi-Confiscated Art, and the 2009 Terezin Declaration, which urge nations to decide claims “on the facts and merits” and to take historical circumstances into account when legal hurdles arise. American policymakers have frequently urged other countries to abide by these agreements.

Meanwhile, American policymakers have repeatedly refused to inject themselves into domestic ownership disputes involving cultural restitution claims, thus abandoning claimants to the formidable legal apparatus available to current possessors in the United States. Therein lies the failure of the Washington Conference of 1998 and all subsequent attempts at fostering greater understanding about looted art. How hypocritical can one be?

Patricia Cohen: In a keynote address at the Terezin conference, held in the Czech Republic, the leader of the United States delegation, Stuart E. Eizenstat, said he was concerned about the tendency to seek refuge in “technical defenses,” including the statutes of limitations.

Ambassador Eizenstat can express his many concerns for as long as he wishes but the truth remains that he does not lift a finger to apply his political weight on institutions like MOMA in the spirit of the Washington Conference of 1998 and the Holocaust-Era Assets Conference of June 2009 both of which he helped organize? Where are you, Ambassador Eizenstat, when claimants need you the most? Actions speak louder than words.

Patricia Cohen: Some lawyers who have represented MoMA and other museums in unrelated cases say that laws regarding time limits are not merely technical, but also speak to the question of whether it is possible to reconstruct an accurate historical record after a long lapse. Automatically giving claimants the benefit of the doubt can unfairly penalize honest and rightful owners, said Jo Backer Laird, a lawyer at Patterson, Belknap, Webb & Tyler, a New York firm that represents MoMA and other museums but is not currently involved in any restitution cases.

It is not in the interest of current possessors, especially institutional holders of looted cultural property, to conduct extensive, exhaustive research into the provenance of cultural objects in their collections. A recent and well-publicized restitution by the Boston Museum of Fine Arts clearly shows that, even if there are gaps in the ownership history of a painting, the critical mass of information pointing to ownership by a claimant is sufficient to incite the current possessor to return the claimed item rather than invoking hurtful, self-centered, and morally and ethically unjustifiable legal defenses in order to prevail as the current possessor.

We have not heard the last from the Grosz case. Alea jacta est...

Henri Matisse in Vichy France

by Marc Masurovsky

As in the case of Pablo Picasso and many other eminent artists plying their creative streak in France, Henri Matisse chose to remain rather than leave his native country in the face of the German onslaught of spring 1940 against Western Europe.

Let's engage in a perfunctory review of Matisse's journey in wartime France:

October 1939: Matisse goes to Paris after a stay near Rambouillet. While in Paris, he places for safekeeping all of his works of art and those of other artists which he owns, in a vault at the Banque de France. His son, Pierre, has already left for the United States, while his other son, Jacques, is in the French Army. His grandson, Claude, is in a boarding school near Vichy. His daughter, Marguerite, is with his wife in the town of Beauzelle. Apparently, Mr. and Mrs. Matisse have not been living together since March 1939.

Mid-October 1939: Henri Matisse heads back to Nice where he has an apartment at the Hotel Regina from which he works. While Henri goes to Nice, his wife and daughter return to Paris to an apartment on rue de Miromesnil.

November 1939: Henri Matisse renews a contract with the dealer, Paul Rosenberg, who is one of his most regular buyers.

January 1940: Pierre Matisse, now settled in New York, announces to a variety of family friends that his parents are splitting up.

May 1940: While the German armies are running roughshod over French troops in eastern France and heading towards Paris, Henri Matisse returns to the beleaguered capital, dodging refugee traffic, in order to finalize his legal separation from his wife.

June 1940: Matisse and everyone else who can manage it hightails it out of Paris and heads south-southwest. He ends up in late June 1940 at Ciboure near Saint-Jean-de-Luz in the Basque country. He remains in that part of the world, not too far from where German troops are stationed, but far enough, until he finds a train to take him back to Nice in August.

August 1940: Matisse reaches Carcassonne then Marseilles. In Marseilles, he draws a series of portraits of his grandson, Claude Duthuit. On August 29, Matisse finally makes it back to the Hotel Regina in Nice, shortly after Picasso returns to his studio in Paris on the rue des Grands Augustins.

Fall 1940: Varian Fry, of the Emergency Rescue Committee, funded in part by Alfred Barr, the director of the Museum of Modern Art (MOMA) in New York, tries in vain to convince Matisse to escape to the United States. Matisse refuses. Matisse is Fry's idol.

Winter 1940-1941: Matisse is plagued by intestinal problems and has difficulty working.

January 1941: A cancerous growth is removed from Matisse's abdomen.

Meanwhile, unbeknownst to him, while he is holed up in Nice, dozens of his paintings and works on paper are being forcibly removed from Jewish collections and brought to the Jeu de Paume or recycled on the local art market. His works fetch upwards of 300,000 Francs in Paris auctions which is a significant amount for those rationed days.

August 1941: Matisse is among many "French" artists who exhibit their works on paper at the "Salon du Dessin" in Paris, one of the first major artistic events in the German-occupied capital that excludes Jews from its walls. That same month, Matisse allows Varian Fry to take a series of photographic portraits of him at the Hotel Regina in Nice. How surreal!

November 1941: Matisse has an exhibit at the Galerie Louis Carré in Paris.

January-February 1942: Matisse grants several interviews to the Vichy government's official radio station.

Matisse spends the rest of the year in Nice, convalescing from additional gastro-intestinal troubles but continuing to work as best as he can for one of his dealers, Martin Fabiani, who makes a fortune collaborating with the Germans during the war. Ironically, Fabiani sells on the side stolen paintings by leading artists such as .... Henri Matisse, which the Germans have exchanged with him against more classical works.

January 1943: Vichy's leading cultural rag, Comoedia, publishes an interview with Henri Matisse, predicated on his creation of 50 drawings illustrating Pierre Ronsard's poems. The article by Marguerite Bouvier is an ode to Matisse, who is now 72 years old.

June 1943: Finally, Matisse is forced to flee Nice and seeks refuge in Vence, due to a constant threat of aerial bombardments.

September-October 1943: Matisse and Braque are prominently displayed at the Salon de l'Automne, an annual fixture of the French (read Paris) art scene. Strangely, while their works are shown to everyone's delight including that of the German occupier, the ERR is busy figuring what to do with Matisse and Braque works under their jurisdiction not too far away at the Jeu de Paume.

Spring 1944: the estranged Mrs. Matisse and her daughter are arrested for engaging in acts of resistance against the Vichy government and the German occupation. Mrs. Matisse gets six months of prison while her daughter is jailed until the Liberation.