Why all the fuss about provenance research?

by Marc Masurovsky

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

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

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

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

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

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

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

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

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

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

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

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

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

A small tribute to Charles Goldstein

Charles Goldstein

by Marc Masurovsky

Charles Goldstein, counsel to the Commission for Art Recovery and Ronald Lauder’s attorney, died on July 30, 2015. He was 78 years old. Mr. Goldstein was also affiliated with the New York law firm of Herrick Feinstein, which has developed over the years a prestigious art restitution practice. Herrick Feinstein’s most visible cases have been the Portrait of Wally by Egon Schiele and the missing paintings of the late Jacques Goudstikker. Mr. Goldstein's most significant case at the time of his death is CAR's representation of the Baron Herzog's heirs against the Republic of Hungary.

I will now refer to Mr. Goldstein as Charles because of the budding friendship that evolved between us. I cannot say for certain that there was a deep friendship, but it certainly went beyond acquaintanceship.

Nothing predisposed me from ever meeting Charles and even more so from developing a bond with him, however loosely you would like to define what a bond really is.

As Ronald Lauder’s lawyer and as counsel to the Commission for Art Recovery (CAR), there was much axe to grind over palpable differences between what he represented -- or what I thought he represented--and what I represented. Namely, as a co-founder of the Holocaust Art Restitution Project (HARP), I became embroiled together with my HARP colleagues, Ori Z. Soltes and Willi Korte, in the Portrait of Walli affair which erupted in late 1997 over the refusal by the Board of the Museum of Modern Art of New York (MoMA) and its director to even consider opening a dialogue with the relatives of the pre-war owners of two paintings by Egon Schiele with questionable ownership histories that were on display in MoMA’s galleries as loans from the Leopold Collection in Vienna, Austria.

Ronald Lauder was then the Chairman of the Board of MoMA. The perception to the outside world was that Mr. Lauder and the Board of MoMA had steadfastly refused to sit down with the proclaimed heirs of the two contested Schiele paintings and to try to “work something out” short of getting embroiled in costly legal entanglements. The claimants wanted the paintings to remain in New York until they could get a fair hearing. MoMA wanted to honor its contractual obligations with the Leopold Museum and get the paintings out of the museum at the end of the Schiele Exhibit scheduled for the first week of January 1998. At that time, Charles was not directly involved in art restitution matters. In a very frank exchange that Charles and I had over the Wally affair, Charles insisted that Lauder was not involved in MoMA's ill-treatment of the Wally affair.

Thus began a cold spell between HARP and CAR. It did not help matters that CAR had sought to silence HARP by offering to “buy” it out of existence in the summer of 1998.  Lauder represented CAR and there was no way of understanding how CAR could square art restitution and MOMA's handling of the Schiele paintings. As far as HARP was concerned, CAR had gone to the dark side, choosing to leave most art restitution claimants in the cold and catering to wealthy clients seeking the return of their priceless works. Those were the caustic days of the late 1990s embittered by the mixed results of the Washington Conference on Holocaust-era Assets of December 1998, fueled by the American government's inability and unwillingness to truly move forward on this last chapter of WWII, dealing with the fate of looted Jewish cultural assets. Much water has since flowed under the proverbial bridge. Cooler heads have somewhat prevailed and it is clear that HARP's initial assessment of CAR ended up being far from accurate, as attested by Charles' groundbreaking work in art restitution cases and that of his colleague, the extremely able and brilliant Agnes Peresztegi, Director of European Operations for CAR.

Seven years elapsed since the Wally affair and the Washington Conference. A mutual friend advised Charles to invite me to a very unusual (by my standards) international gathering of specialists co-sponsored by the London-based International Foundation for Cultural Diplomacy that was being held in southern Bavaria on the estates of the Duke of Bavaria. Charles/CAR agreed to sponsor my presence at this conclave. The topic at hand: databases and art restitution. I hadn’t set foot in Germany since 1972.

I drove through the Swiss-German border, laden with ancient memories of Jewish refugees being turned back in the 1930s and early 1940s. I was so terrified that I slowed down to show my passport. I was quickly summoned to keep on driving because… there was no passport check.

As I drove along the roads flanking the northern edges of Lake Constanz, names of towns echoed with direct associations to former slave labor camps, depots for looted Jewish property, and Allied battlefields. It was in this area that Jacques Doriot, leader of the PPF and a close friend of the German occupation forces in France had been machine-gunned on a lonely road towards the end of WWII. Charming!

I found myself arriving two hours earlier than I should have at the town of Salem---a curious name since in the US, Salem had hosted the first political trial of the New World accusing a group of young women of using sorcery and witchcraft against the town's "respectable" men.

My first stop was the local cemetery. You might find that strange but cemeteries are the best way of getting acquainted with the history of a community. The first “monument” that I saw was a plain, massive rectangular marble slab tacked to a small obelisk bearing the etched names of German soldiers from Salem who have gone “missing” during WWII. I found it truly moving and, no matter how much havoc those young soldiers might have wreaked in the former Soviet Union, it was still a compelling homage by their kin to indicate their fate as “missing”. Call it my ecumenical side but a human loss is a human loss, no matter which side of the fence you happen to reside on. My heart did leap when I saw several names with those familiar 'lightning bolts" etched next to them. Further along, tucked away behind the right wall of the church, around which the cemetery was formed, one stumbled on the Social Democratic section—made quite obvious by the tributes engraved on various tombstones. A good indication that Salem had experienced a complex political past reflective of Germany’s woes during the Weimar period. No Jewish graves in sight.

I eventually stumbled into my temporary living quarters, located on the estate of the Duke of Bavaria, down the street from the cemetery. I walked around the grounds and saw seated at a table outside the “inn” drinking a cocktail a small, balding, rotund figure topped with a roundish puffy face. He was wearing what the French call a grey “gilet” over which he wore a dark jacket. It was Charles. He motioned me to his table and we started chatting over nothing and everything. So began our “friendship”.

Over the years, we learned to trust each other. Although trust is a big word, maybe respect is more appropriate. I never worked for Charles, but he invited me over time to keep him “posted” on my activities and what I knew of specific occurrences in the art restitution field, a genuine hornest’s net crossed with a snake pit.

We did end up “working” together to stymie attempts by the American museum community to pass laws in Congress that would in effect eliminate claimants’ only recourse to plead their case in US courts over objects with contested histories. This collaboration, particularly centered around SB 2212 and its subsequent variants in the House of Representatives, defined the outer boundaries of our “bond.” The discussions provoked by the proposed legislation to “immunize” stolen works and objects of art entering the US for purposes of display, compelled us to find common grounds over issues such as barring statutes of limitations and other technical legal defenses in art restitution cases and Federal regulation of due diligence practices in the art world.

Charles, never one to mince his words, flatly stated that restitution litigation as we know it would die off quietly because of the paucity of claims coming forth in US civil courts. I could only retort that the huge cost of litigation, no thanks to Charles’ steep fee structure, discouraged most claimants from coming forward. His quip was to restate that he and his firm would not take any case where the object’s value was less than one million dollars. Period.

We left it at that.

The most important moment for me was when Charles broke rank with American Jewish organizations over the campaign to defeat SB 2212 by arguing that it was wrong and unethical to disregard other genocidal events against indigenous peoples and cultures around the world, including one of the most egregious which targeted the original inhabitants of the Americas. He recognized that it was in our common interest to seek support from those advocates of other groups and constituencies seeking redress for past genocides and from the archaeological community. It demonstrated his profound ethos and commitment to color-blind justice. The strategy worked and SB 2212 died a miserable death.

Charles and I ended up meeting several times a year in New York at some of his favorite watering and eating haunts, either on the upper west side across from the Lincoln Center, or across from his firm at 33rd Street and Park, or even on the upper East Side close to where he lived.

He gradually shared more elements of his personal life which were “entertaining” to say the least. I never considered Charles to be a ladies’ man, but, yes, he was, in his own special way. He had a disarming smile and a wicked sense of humor, almost disarming.




As he grew weaker due to his illness, he maintained a stoic poise and was quite frank about his few brushes with death owing to allergic reactions to the medication that he was taking which seemed to incapacitate him. But he was a fighter and he knew how fortunate he was to be so well cared for by a supportive network.

I end this small tribute to him with two last thoughts:

I thank him dearly for extending himself professionally by supporting projects dear to my heart.

He left behind a wonderful daughter, Deborah, who, in so many ways, is the antithesis of her father. But they both share a huge heart and openness of mind that are hard to find nowadays. I never had the pleasure of meeting his son, Graham, nor his ex-wives. But my heart goes out to all of them for their loss.

Charles: You are sorely missed. You were and continue to be a driving force and a huge influence on the restitution discussion both in the US and abroad. We have not yet measured the impact of your passing. The fact that your opponents representing museums and art dealers have already uncorked champagne bottles toasting your disappearance is premature and typical of their hubris. We’ll see who has the last word.

More importantly, you taught me to value and nurture a more pragmatic approach to seek a more ethical treatment of restitution claims and instill better practices in the management of objects with dubious histories. In that regard, you were an excellent teacher.

I do miss you, as a friend, a colleague and an intellectual foil.

You are a mensch.

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”?

Wild Weekend with Wally-Part Two

Close-up view of "Portrait of Wally"
Source: Google Images

Andrew Shea, Director
Source: Google Images

The making of a documentary film on the fate of the “Portrait of Wally” is a heady exercise. Its subject matter is a loving, dreamy and complicit portrait by Egon Schiele of his mistress, Walburga Neuzil. This was no art historical exercise here, though, especially coming from a legally-trained filmmaker, Andrew Shea, a veteran journalist, David D'Arcy, who straddles the fence between art and politics, and a well-seasoned film festival organizer, Barbara Morgan. “Wally” is all about the forensics of a racially-motivated theft in Nazi-absorbed Austria and the postwar attempts to recover title to an illegally acquired painting, “Portrait of Wally”, from an iconic figure of the Austrian art world, Rudolf Leopold, more interested in protecting ill-gotten treasures which were ripped from the bosoms of persecuted Jews in a nation that forgot to mete out justice against the culprits of Nazi collaboration.

Howard Spiegler, attorney for the Bondi Estate
Source: Google Images

The fight over Wally echoes the deep-seeded schisms that underlie the frail ties that bind Jews with non-Jews in nations implicated in different aspects of the Final Solution through intense, widespread collaboration at all levels of the society. By extension, it is about those who did nothing to help those who suffered for the fact that the others did nothing. An uneasy situation with which most European societies have yet to fully come to grips, albeit clumsily and unevenly, some countries behave better than others, although nowadays, anything is possible in the face of a massive rightward and chauvinistic shift in European politics.

David D'Arcy
Source: Google Images

False notions of venality have plagued the claimants of “Wally”—in this case, the Bondi heirs—through press reports (New York Times being no exception), statements made by museum and art world figures who are apparently more concerned with the value of an object and the inviolability of collections than with human justice.

The Wally case encapsulates all that is wrong with the way in which we relate to culture. Our ability to so eagerly disconnect an object from its history is disconcerting, much like when grave robbers violate the sanctity of a tomb and rip out from its matrix funerary objects meant to accompany their owners into the afterlife. De-contextualization makes it all the more easier to ignore the fact that an object has a human history, a social history, one that is organically connected to its previous owners, its jealous rivals, its covetous admirers, and its oglers. That is not to say that we should all weep and moan at the vagaries of history and the incessant and continual tragedies that sever ties between objects and owners—no, we are not comparing art objects to our favorite pets.

Andre Bondi, son of the late Henri Bondi
Source: Google Images

Left to Right.: Sharon Levin, Willi Korte, and Andrew Shea
Source: Google Images

In the case of Wally, we now have 20-20 hindsight—how convenient! Those who steadfastly opposed the Bondis’ claim to “Wally” and railed against Robert Morgenthau’s seizure of the painting are now gloating about their early involvement in the “Wally” case. The silent ones are those who produced the most damage—MoMA, and by extension, the New York art world, writ large; the Leopold Museum and, by extension, many in the Viennese cultural world, as well as members of select organizations traditionally devoted to the protection of the rights of Holocaust survivors and their heirs and to the greater good of the Jewish community at large.

 Is it so naïve to think that, if in late 1997 and early 1998--the crucial time frame for the Wally "Case"—MoMA, the Leopold Museum, the Federal Government, Jewish organizations, had reacted differently to the plight of the Bondi family, the Wally “case” might not have been a “case” at all? I am one of those who is that naïve to believe so. Woe on me! The seizure could have been so easily avoided. A dialogue between the parties, such as had been offered by HARP in late December 1997, might have spared all the parties thirteen long and tedious years which involved attorneys, judges, experts, researchers, historians, family members, government officials, on both sides of the Atlantic Ocean. An enormous waste of time, energy, and priceless resources, if you ask me.

But such as it is, human nature can be vile in its inability to produce empathy, understanding as it steadfastly adheres as if life itself depended on it to confining, self-serving, self-satisfying legal and fiduciary frameworks and principles—who owns what when? Under what circumstances? I work in a museum, you don’t. Who are you anyway? I am a collector, you are not, etc., etc., etc. Should one even dare cross the Rubicon and wonder whether the underpinnings of those legalistic and defensive questions do not belie more sinister thought processes such as: why do those Jews always fret about what is theirs and what is not theirs? Haven’t they received enough? Is it because “Wally” is worth two million dollars (in 1997) that the Bondi family has asserted its rights of ownership? Is it greed disguised as justice that creates these complications? So many ugly thoughts and questions which pervaded the press and trade debate over Wally, ugly as could be, thus rendering any adult and civilized conversation about the ownership history of this painting by Egon Schiele nigh impossible, resulting in what we have come to know as the “Wally Case.”



End of Part Two

“The Portrait of Walli”: The Case that Will Not Go Away

Portrait of Walli, by Egon Schiele
Source: Bloomberg

In an odd twist of events that allows Egon Schiele’s “Portrait of Walli” to resurface as a magnet for attention, Robert E. Roistacher, former chairperson of the Manhattan Solid Waste Advisory Board, and a 1968 graduate of Columbia University, filed a “demand for judgment” against Andre Bondi and Edith Southwell, the heirs of Lea Bondi Jarai, the late rightful owner of “Walli” whose painting was returned to the Leopold Foundation in Vienna, Austria, in exchange for 19,000,000 $. [the complaint was officially filed, right? Is there a public source to the info?]

Mr. Roistacher is asking for $4,500,000 in professional services that he rendered to the family which include “developing a plan to restrain the property…from leaving New York County, New York, and the jurisdiction of United States courts, until restitution was made therefor.” Roistacher argues that he introduced the Bondi Jaray family members to “legal counsel” and helped in the recovery of the painting.

The demand represents a quarter of the settled value of the painting, and was filed in the United States District Court for the Southern District of New York on November 14, 2011.

The “Walli” case has an original aspect to it. You might recall that the painting was identified in late 1997 as being the property of Lea Bondi Jaray’s family while on display at the Museum of Modern Art of New York, loaned for that purpose by the Leopold Foundation in Vienna, as part of a major retrospective of Egon Schiele’s works. Ronald S. Lauder, former US Ambassador to Austria, and chairman of the Board of MOMA, was instrumental in facilitating this keystone exhibit of the Austrian Secessionist’s provocative and sensual works.

Robert Morgenthau, former District Attorney of Manhattan
Source: Zimbio

Once “Walli” was fingered as possible looted cultural property, a mad scramble ensued to keep the painting from returning to Austria after the exhibit had ended its run at MOMA. The painting, wrapped and crated, was slated to depart in the first week of January 1998. On the eve of its departure, however, then District Attorney of Manhattan, Robert Morgenthau, son of the late Henry Morgenthau, Franklin D. Roosevelt’s Treasury Secretary from 1933 to 1945, called in the cavalry in the form of New York’s “finest men in blue”—the Police Department—and had the painting seized in order for the aggrieved parties to be given a fair hearing on the matter of the ownership of “Walli.”

The seizure represented Phase One of the case. Phase Two dragged on for twelve long years until a settlement was reached with the Leopold Foundation in July 2010, which was brokered by the law firm of Herrick Feinstein acting on behalf of the Lea Bondi Jaray estate.

The question raised by this new twist appears to be: what exactly happened during Phase One? It was sufficiently complex that a serious history of that period may need to be written. Until then, we will see what unfolds with Mr. Roistacher’s claim.

A “fair and just settlement” for a looted Schiele in Vienna?

Any public announcement of a settlement of a claim against the Leopold Museum in Vienna, Austria, must be greeted with a hefty dose of skepticism.

In the latest round, on the heels of the so-called return to the Leopold Foundation of the “Portrait of Wally” by Egon Schiele for a toll fee of $19 million dollars, another issue has cropped up involving “Houses by the Sea”, painted by Egon Schiele in 1914.

Houses by the Sea, Egon Schiele
Source: Leopold Museum via Bloomberg

According to today’s press reports, Dr. Rudolph Leopold had acquired the painting in 1955 after its illegal seizure from Jenny Steiner and subsequent sale by Nazi authorities in wartime Vienna. As in the case of the “Portrait of Wally,” Leopold had a tendency to be fully cognizant of the tainted past of his Schiele acquisitions without paying due heed to the moral implications of his acts, in the name of garnering in a fantastically egotistical manner the largest collection of works by Schiele in the world. He achieved his goal, playing fast and loose with Jewish victims’ losses and with History, the history of spoliation of an entire class of citizens in post-Anschluss Austria.

The “partial” settlement reached by Dietmar Leopold, Rudolph’s son, grants $5 million to Jenny Steiner’s grand-daughter, for a third of the painting. There remains the question of settling with the unnamed “US institutions” that account for the remaining interest in the painting.

Although Dietmar Leopold is confident that he will be able to settle all outstanding claims against his parents’ vast Schiele collection, one must pause at the disquieting notion that such an idea is good and represents “a fair and just” reflection of the actual circumstances underlying the presence of tainted works in the Leopold Foundation’s permanent collection.

More troublesome is the press release of the Leopold Foundation. Absent are comments from Jenny Steiner’s grand-daughter. Her silence is deafening. And yet, the Foundation ecstatically thanks her for her “willingness to contribute to this favorable solution.” Moreover, the very same people who refused to return the “Portrait of Wally” to the Bondy heirs for over four decades laud the personal involvement of Frau Leopold and her son to resolve these complex matters and reach a “fair and just solution.” Even more reprehensible is the declaration that the painting is “doubtlessly the property of the Leopold Museum Private Foundation.” Another way of rubbing salt in the wound. Maybe, theft does convey title in Austria, which it does not in the United States.

As some have pointed out recently, it strikes one as odd that a painting cannot be restituted to the rightful owner’s heir while another painting can be so easily removed from the walls of the Leopold Foundation and be offered up for sale at Sotheby’s so as to pay for the settlement of yet another painting, namely the “Portrait of Wally.” All of this smacks of the same kind of cruel cynicism that tortured and demeaned the Bondy family throughout the postwar years and into the final weeks of the settlement last July 2010. A sad commentary on the current state of affairs in Vienna. One would have thought that the Austrian government could have taken a greater role in ensuring that justice might prevail once and for all, especially after Rudolph Leopold’s death. By its own admission, the Austrian government can intervene and exert significant influence on decisions made by the Leopold Foundation, especially those that engage its fiduciary responsibilities. And yet, it does not. Perhaps, nothing much has changed after all in Vienna.

Open letter to the Uniform Law Commission of the National Conference of Uniform State Laws

HOLOCAUST ART RESTITUTION PROJECT (HARP) 

http://plundered-art.blogspot.com

April 25, 2011

John A. Sebert, Executive Director
Uniform Law Commission

Dear Mr. Sebert:

As co-founder of the Holocaust Art Restitution Project (HARP), I am responding to your call for comments regarding a “Prospectus for a Uniform Act on Civil Resolution of Art Ownership Disputes.”

Although I am not a lawyer, I am a trained historian on issues pertaining to the Holocaust, the Second World War, the mass plunder of all categories of assets by the Axis Powers and their allies in continental Europe and Asia, as well as the complex construction and enforcement of Allied restitution policies in the post-1945 world.

I also advocate for justice to Holocaust victims and their families in their efforts to receive either the rightful return of their stolen property or compensation for assets forcibly removed by Nazis and their agents.

With thirty years of focus on these and related issues, I feel well-equipped to address the concerns and points raised by this Prospectus.

My purpose is to respond point by point.

Regards,

Marc J. Masurovsky
Co-founder, Holocaust Art Restitution Project

cc: Ori Z. Soltes, Chairperson, Holocaust Art Restitution Project
     Willi Korte, co-founder, Holocaust Art Restitution Project

1. Desirability and feasibility of a uniform act:

There has not been any desire expressed by claimants and other victims of the Holocaust for a uniform act governing issues of restitution of looted art. It is my understanding that those who are advocating for a uniform act are members of the US museum community and their representatives in the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD).

Although, in principle, such a uniform act might be viewed as feasible, its implementation would have untold negative consequences on those seeking the return of their cultural property, writ large, to include Holocaust-era losses, objects illegally removed from archaeological sites, as well as nations seeking to repatriate items which were illicitly removed from their territory and transferred to other countries. It would also destabilize current Federal and Congressional mandates governing the illicit traffic in stolen goods on US territory by producing what some have called an end-run around the National Stolen Property Act (NSPA).

2. Past art ownership disputes

Although it is always desirable not to go to court to obtain satisfaction and even some measure of justice for a historical wrong perpetrated decades ago in faraway lands, the idea that art ownership disputes used to be resolved out of court is not borne out by case law, by the history of the art world, and by the quest of theft victims for the return of their property. That might have been true in a bygone world where museum officials, art dealers, and art collectors discussed their problems over cognac and cigars. However, if you delved a bit deeper into the aggressive techniques used by art owners to settle scores even amongst themselves, they always invariably ended up in a courtroom.

3. Uncertainty and the Uniform Act

Uncertainty is a mathematical principle premised on the notion that there will always be a state of imperfection whereby results depend on the variables that are entered into an equation. For a geographer, the only certainty is a fixed point defined by longitude and latitude. When one injects the concept of scale into the location of a geographical point, uncertainty enters the picture. Therefore, uncertainty can be measured but it does not lead you to certainty. In terms of art restitution cases, even the concept of theft is subject to uncertainty. Was the object actually stolen? What constitutes theft during the Holocaust? During the Nazi era? Is a forced sale the same as theft? In the case involving the "Portrait of Wally" by Egon Schiele which pitted the heirs of Ruth Bondi Jarai against the Museum of Modern Art of New York, the New York State Court of Appeals was certain that Wally had been restituted because it had been ‘found’ by the US Army.

How would the Uniform Act establish certainty in a restitution case when all that is known is that the object disappeared from a home in Dusseldorf in March 1938 and resurfaced in a US museum in 1951? Likewise, how certain can you be that an object was not properly restituted after 1945 before its sale decades later? In the case over the restitution of a Degas pastel filed by the Goodman family against Daniel C. Searle, billionaire trustee of the Art Institute of Chicago (Goodman v. Searle), part of the battle hinged on the Goodman (then Gutmann) family’s intention to sell or to store the object in Paris, France, from which the Degas was stolen by elements of the Einsatzstab Reichsleiter Rosenberg (ERR). Despite the fact that the ERR removal constituted theft, the defense cast a doubt by intimating that the item was being offered for sale.

4. Stability into the national and international art markets

As of now, there is no indication that the art market is unstable and that it would be stabilized should there be a uniform act. The notion that standardized procedures on matters pertaining to art restitution in all 50 states would inject stability in the national and international art markets is ludicrous. The art market not only is impervious to the upswings and downswings of art restitution but it has succeeded in monetizing and increasing the value of restituted works of art, as demonstrated by the extraordinary prices commanded by Maria Altmann’s Klimt paintings, by the ‘Sunflowers’ of Egon Schiele, to name a few. The art market is more likely to be destabilized by the vagaries of speculation from key players, international fluctuations in currency rates, and fundamental disruptions in the supply of art brought about by mass conflicts, protectionist laws, and natural disasters.

5. Forum shopping

Oddly enough, forum shopping favors both sides of the art restitution debate and is a legal strategy that has always had its pluses and minuses. The elimination of such a strategy can only serve one constituency—the museum and art dealer community. Without an ability to ‘shop,’ claimants might be forced to rely on extremely unfriendly jurisdictions in their quest to obtain the return of their property. It is not clear that the so-called nonjudicial resolution of art ownership disputes would provide a level-playing field for claimants, in view of the complex nature of these historical cases.

6. Nonjudicial resolution of art ownership disputes

The emphasis given by this prospectus on this legal strategy is well-intentioned but misguided. As in a court of law, there are no guarantees that nonjudicial proceedings constitute a more favorable environment for claimants to obtain restitution of their stolen property. Museums, art collectors and dealers alike in the United States have been unusually stubborn in their belief that they are the rightful owners of the property being sought by claimants, as the good faith purchasers of those objects. Since the American legal system leans more favorably towards the good faith purchaser, the onus invariably is on the claimant to disprove the legitimacy of the current possessor’s title to the object sought for restitution.

Nonjudicial resolutions will deter restitution and encourage financial settlements. Again, in the case of the Portrait of Walli, the resolution of the case was viewed as a success, despite the fact that the painting was returned to the Leopold Foundation in Vienna, Austria, against a fee of 19 million dollars. The heirs of Ruth Bondi Jarai initially desired the restitution of the painting, not its return to the very people who had refused to restitute it to the family for over four decades. One can argue that a decade of protracted legal battles wore down the heirs and perhaps even the Leopolds into reaching a financial settlement. The settlement was also predicated on the insistence of the Leopolds not to return the painting. That is the cardinal principle at work here and in most art restitution cases filed in the United States: refusal by the current possessor to restitute. In civil proceedings, there is no legal mechanism that can compel the current possessor to restitute an item except on moral grounds, which is the predicate for all Holocaust-era restitution cases.

7. Inconsistencies among the States

The national art market in the United States is defined by two States—New York and California. What would be the consequence of resolving inconsistencies among the States through the adoption of uniform standards? How would such standardization affect art ownership disputes in those two States where there is a higher level of awareness on issues pertaining to art restitution, although not proven to have served claimants well in recent years? It is in New York, after all that, in 1998, months before the Washington Conference on Holocaust-era Assets, museums and art market groups such as the Art Loss Register led the charge to enact stringent statutory limits on restitution cases and press for the adoption of a single registry to fulfill due diligence requirements for those acquiring, selling, borrowing, lending, or donating cultural objects. The current strategy favored by the ULC to adopt a uniform standard might actually provide a belated victory to those entities by reducing, if not eliminating, most legal remedies that have given claimants greater flexibility in obtaining justice in the American legal system.

8. Ownership

a. “Theft does not convey title”— this sentence has been and continues to be the battle cry of those seeking art restitution. When uttered by an American brigadier general in the summer of 1945 in the face of the staggering breadth and scope of Nazi-ordered plunder across Europe, the phrase resonated more sharply as he tried to comprehend how plunder had become an integral component of a war of aggression against civilian populations because of their status, race, creed, ethnicity, political or religious beliefs. Unfortunately, that sentence does not mean much in the eyes of current possessors of art objects which have been repeatedly recycled in the postwar art markets. Current possessors have been shielded by a barrage of laws that provide them with the benefit of the doubt as to their possession of good title. All formerly occupied or annexed nations of Europe passed such laws so as to prevent a wholesale purge of the art market. The only transactions that could be scrutinized were those directly engaged in between seller and current possessor where the possessor was fully aware that the seller was persecuted owing to his or her religion and beliefs. Put another way, postwar governments gave a conditional pass to all wartime transactions regardless of how works and objects had been acquired, despite international pronouncements on plunder and accountability of those who abetted acts of looting through profit and recycling.

b. In the United States the Roberts Commission, staffed by eminent museum directors, art historians and experts, was put into place by the Roosevelt Administration to address the magnitude of cultural thefts in war-torn Europe and, in part, to assess the impact of those thefts on the US market. In July 1946, the Roberts Commission concluded, despite the total absence of reliable data, that there were too few stolen or illegally acquired objects entering the United States, to warrant the maintenance of wartime prohibitions or restrictions against such imports. The end result was that any mechanism to filter illicit imports of art objects disappeared and the only legal instrumentality left to Federal monitoring agencies was the National Stolen Property Act (NSPA). Needless to say, without any lists in hand or methods by which to identify these objects, there was no possible way that Customs or any other law enforcement agency could readily identify how one painting by Tiepolo could be ill-gotten as opposed to another painted by the same artist. In other words, the United States opened its doors wide open to all cultural imports without providing the needed resources to its monitoring agencies to filter illicit imports. The United States government’s initial commitments to restitute stolen objects to their rightful owners quickly faded as the Cold War heated up, while the art market grew exponentially over the coming decades. The occasional art theft cases rooted in wartime thefts garnered headlines on a periodic basis but did not influence museums and art dealers to change their ways.

Although it is true that “a thief cannot transfer title to another regardless of the other’s good faith,” the art world operates in a different manner by relentlessly upholding the rights of the current possessor against claimants’ assertions that the current possessor acquired title in bad faith. This problem brings up several points: transparency and due diligence.

c. Transparency: In an art world where transparency reigns supreme, there is full disclosure from all parties regarding the ownership history of the contested object being claimed for restitution. However, due to the unregulated nature of the art world, there is no obligation for any museum, art dealer, art collector, or any other individual or entity involved in the commerce of art to publish full provenances on objects in their possession or under their care. A brief survey of current auction catalogues, museum collections—private and public—art gallery inventories and other listings where art objects are featured, in the worst cases, the provenance is non-existent, in most cases it is minimal, and in a small minority, it provides more details which allow for the reader or potential buyer to be educated about the history of the object.

Since the act of producing a provenance is not regulated, there is no oversight mechanism in place to confirm or infirm the veracity of the content of that provenance. In other words, an element of blind trust goes hand in hand with the acquisition or trade of art objects. In short, there is more opacity than transparency in today’s art world, despite laudatory efforts on the part of leading auction houses like Christie’s and Sotheby’s and certain museums to be more forthcoming and systematic about the ownership histories of the pieces that they either sell or acquire or display. These efforts are especially noteworthy in specific markets—namely, New York, London, and Paris—and in larger so-called Tier One museums.

And yet, we are continually plagued by provenances which include a single transfer of ownership or several owners, despite the fact that the item in question is 200 or 300 years old. The practice of opacity continues unabated. Hence, transparency without regulation is a fantasy.

9. Due diligence

Before there is a legal debate over who should “be required to investigate the provenance of an item,” let us consider what due diligence entails. The act of due diligence is on par with the act of purchasing an automobile or acquiring a house: one must do one’s due diligence, by law, before acquiring good title to a car or a house. However, there is no full guarantee that one has good title because of various schemes used to cloak true ownership of assets. Those techniques evolved in the wake of the First World War and the Versailles Treaty and were fully brought to productive use during the Second World War in order to evade government restrictions on trade and transfers of ownership.

The act of purchasing an art object, writ large, to include antiquities requires a certain amount of research on the part of the person acquiring the object as a show of ‘due diligence.’ Part of the due diligence process involves obtaining as full a disclosure as possible from the current possessor regarding the history of the object. It is up to the potential buyer to decide whether or not to acquire the object if the seller cannot produce a fleshed-out provenance. More often than not, the absence of provenance does not deter a buyer from acquiring the object and thus title to that object. Once the transaction is sealed, the new possessor is assumed to have good title, unless otherwise proven wrong. The question is: by whom?

With billions of dollars at stake in a global market that is both covert and overt, the issue of due diligence shrinks in the presence of the goliath that is the marketplace of art. While much progress has been made in the trade about due diligence and provenance research for certain classes of objects that have been readily identified with Holocaust-era thefts—Old Masters, Impressionist works, Secession artists (Schiele and Klimt)—the same does not hold true for the vast majority of art objects, including, but not limited to, furniture, medieval two- and three-dimensional objects, works on paper, bronze objects (the origin of Rodin castings can be complicated to trace because private anonymous owners own the moulds. The same goes for engravings when private owners possess the original copper plates or stones in the case of lithographs or woods for woodcuts.) Short of regulation, there is no mechanism that can ensure even an iota of compliance and transparency on the part of current possessors, exhibitors, borrowers, lenders and donors of art objects to reveal the full provenance of the object.

Therefore, the long answer is that the due diligence duty befalls both seller and purchaser.

a. Accessibility of information on the Internet: The wealth of information on the Internet provides greater opportunity than ever before for individuals and organizations to obtain ownership information on a very limited category of objects. I wish to emphasize the word “limited”. The Internet may provide you with sufficient information on the ownership history of 1/10 of one per cent of those objects that are in the open market, whether on sale or on display. For some categories of objects, it is nigh impossible to obtain anything on the Internet. Therefore, due diligence begins with the Internet, but does not end there. One moves on quickly to a limited number of databases that are available for consultation. While most are proprietary or fee-based, a database like the “Database of Art Objects at the Jeu de Paume” contains fairly complete information on more than 20000 stolen objects which are fully-accessible and fully-searchable. But that number does not even scratch the surface of the total number of art objects in the market. Art-historical resources are difficult to consult if one does not live near well-endowed museum reference sections, art libraries, or institutions devoted to art research. Hence, due diligence takes on a very different meaning whether one lives in the Midwest, the New York area or in Oregon or even Alaska.

b. Value and due diligence: From 1944 to 1950, the so-called “Monuments Men” including a handful of women, consisting of curators, art historians, art experts, and museum directors, were detailed to the European Theater of Operations (ETO) and also the Far Eastern Theater of Operations to do what they knew best. They brought with them their baggage of taste and esthetics to war-ravaged continents and worked hard to facilitate the location, recovery, identification, repatriation, and restitution of untold numbers of looted objects. Because of time constraints, they invariably focused on the great names of classical art history and the most recognizable and expensive items with which they were familiar. Few were versed in the arcana of second-tier artists whose works were of high-quality but not sufficiently high to warrant inclusion in the collection of the Metropolitan Museum of Art or similar institutions in North America and Europe. Therefore, due to prejudice and time constraints, justice was denied to the overwhelming majority of victims of art thefts ever since the inception of Allied restitution policy. Those who happened to collect works by ‘minor’ Impressionists or artists whose appeal was regional—as in Central, Eastern, Western, Southern, or Northern European—saw their claims cast aside because of their ‘LESSER’ value than works by Bellotto, Cézanne, Pissarro, Leonardo Da Vinci, Ruysdael, and the list goes on and on and on.

Invariably, the art world argues time and time again that it is counterproductive and not cost-effective to do one’s due diligence on lesser valued items. And therein lies the rub. This debate about due diligence and transparency masks some of the inherent biases built into the restitution debate. Indeed, there is far less interest even for auction houses and gallery owners to waste their time on a work by Foujita of Paris, or Felix Nussbaum of Brussels, whose works are valued in the tens of thousands of dollars or perhaps low one hundred thousands, than they would on that cherished idol, Pablo Ruiz Picasso, or Marc Chagall. Even with those icons of the art world, there is discriminatory ‘due diligence’ depending on whether we are working with works on paper or oils or three-dimensional objects/sculptures.

Due diligence must apply to everyone and everything regardless of the market in which the objects are traded, with the notable exception of flea markets and garage sales.

10. Statutes of limitation

a. Commencement of statute: The theft occurs in 1941. The owners are gone. Some come back after the war. Their objects have disappeared. They don’t have an inventory but they do remember what they owned. They put together an inventory based on what they remember and file it with the proper authorities who handle restitutions. Nothing surfaces. These people are already middle-aged. They might have children. They keep this restitution issue to themselves. They die. Their children inherit the few possessions that they have as well as the inventory of what was once owned before the 1941 theft. We are now maybe in the 1960s or 1970s. Their children have their own families. Depending on their level of interest in the matter, they may make some inquiries. But they have day jobs and are not independently wealthy so as to afford full-time investigators. Meanwhile, their stolen possessions have gone through several owners. Perhaps, one or two or more may have been part of exhibits in different parts of the world. But they don’t know because they are not focused on the art world. Then one day, one of them walks into a museum and says: that looks like the painting that our parents talked about when we were kids. Question: does the statute begin at that moment?

Let’s say for now that the kids do not inquire further about this particular object. One of them eventually decides to look into it and makes an inquiry at the museum where the painting is displayed. Depending on how rude or cooperative the museum official is, there might be very little or no information for this potential claimant. If the object is on loan for the exhibit, the museum official would not be bound to say anything. Because the potential owner is ill-equipped to move the process forward, in more cases than none, he or she will stop inquiring at that moment. Hence, an opportunity is lost to promote the identification and possible return of a looted object. This story is repeated time and time again, for the following reasons: opacity of information denies the opportunity to families of despoiled owners to make informed decisions about whether to pursue a claim or not. With respect to due diligence, the onus of research is on the institution that harbors the piece for exhibition purposes as well as the current possessor. It should not be left to the victim to provide detailed information when such information may be non-existent or fragmentary at best. Therefore, instead of dismissing the question out of hand as groundless or unfounded, the institution must do its part, regardless of whether an individual walks in to an exhibit and believes that he/she has spotted an item that belonged to his/her family.

If we use the above example, let’s apply the different commencement dates:

i. The date the theft occurs or is discovered—in the above case, the statute would commence either in 1941 or in 1945.

ii. The date the whereabouts of the property is discovered—in the above case, it was not a confirmed discovery. But if we presume that it is the same object, it would have been in the 1980s or 1990s.

iii. The date the whereabouts of the property reasonably could have been discovered—this concept is heinous, to put it mildly, because it implies that every victim is an art historian, art connoisseur, art expert, and spends hours every day consulting art magazines, auction house catalogs, has access to a myriad of flyers, brochures, clippings, and illustrations about exhibits in collections around the world. How absurd an idea! The art market is all too happy to foist this ridiculous standard at claimants. It is irresponsible to expect a claimant to be so omniscient about the art world. There is not a single collector on this planet—I defy anyone to find one—who, with modest means at his/her disposal, spends a large chunk of his/her time keeping tabs on the global art market in all of its variations and infinite nuances. 

iv. The date a demand for return of the property is refused- As a general rule, thefts associated with crimes of genocide or mass slaughter should have no statutory limits associated with the discovery of the objects. The issues surrounding cases of art restitution are complex enough that as much leeway as possible should be given to the parties involved to work out the question of ownership. That implies fleshing out the history of ownership of the object, which entails in most cases a significant amount of historical research oftentimes in several countries. A more dynamic public policy on the subject of restitution would provide resources to those who can ill afford years of research so as to bring about speedy resolutions of these art ownership disputes.

b. Laches and statutes of repose: Laches and statutes of repose should not be invoked in cases involving Holocaust-era thefts.

11. Burden of proof

In the US Zone of Occupation in Germany, a law was passed known as Military Law 59. The burden of proof was placed on the current possessor who had to demonstrate that he or she had not knowingly acquired an object having been associated with an act of persecution against groups targeted by the National Socialist government for persecution and extermination. Hence, the onus was placed on the current possessor to establish his/her good faith. The same should hold true today instead of having current possessors hiding behind shields of willful ignorance.

12. Remedies

Restitution where appropriate is the goal.

a. Damages are a compromise, especially when claimants have to work through expensive law firms and against institutions that refuse, on principle, to restitute. In this matter, American museums have a paltry record of restitution when compared to their European counterparts.

b. Compensatory awards to a bona fide purchaser do not occur frequently. In 1949, the US Department of State recommended successfully that a New York art dealer, Fine Arts and Associates, be compensated for the sale of a painting to the Detroit Institute of Arts which turned out to be have been stolen from a French Jewish owner and sold through the market by an agent of the Nazi Minister of Foreign Affairs, von Ribbentrop.  When the item was restituted to the Jewish family, the New York art firm protested that it had been defrauded by Ribbentrop’s agent and demanded compensation. In the Seattle Art Museum case involving a painting by Henri Matisse which belonged to the heirs of Paul Rosenberg, the Paris art dealer, the Museum sued the New York art gallery, Knoedler’s, for compensation of its loss of the Matisse painting.  The Museum argued that its donor, the Bloedel family, had been misled by Knoedler’s about the actual provenance of the painting at the time of its acquisition and therefore transferred the tainted title when they donated the painting to the Seattle Art Museum.  The complexity of compensatory awards is tied to the inflated values of art objects on today’s art market.    The concept nowadays is the equivalent of a slippery slope and should be treated as such.  If there were greater transparency and stricter due diligence requirements, current possessors might be able to forestall these complications.

13.   The Registry

It’s a nice idea and one that has been bandied about for years.  The main problem behind a title registry is that it can provide good title to a current possessor of a stolen item and thereby, act as a ‘laundering’ mechanism for stolen property, The criteria that would have to be met in order to register a work or an object in that registry would have to reflect transparency and full disclosure of the past ownership history of the object being registered.  In other words, the risks entailed by such a registry outweigh the benefits unless there is a thorough vetting process put in place.  As discussed earlier, the Internet does not provide sufficient background information to justify giving an object a clean bill of health.  Moreover, who would establish the criteria by which one could list an object in this title registry?  Or would the title registry assume that everyone has ‘good title’?

14. Preemptive Federal Law

For now, Federal law provides the best instrument with which claimants can recover their property under the NSPA. Any attempt to gut or to weaken the NSPA would amount to a catastrophe for claimants who have very little or no protections at the state level. Hence, the ULC project should keep this in mind if it is interested in justice for all parties concerned. If a museum is the current possessor of stolen property, it has to return it to its rightful owner. That is where the Federal system has been and continues to be of tremendous assistance to claimants, regardless of their nationality, and the nature of the theft.