The Struggle Continues

by Ori Z. Soltes

Which struggle? 

Not just that on behalf of claimants whose cultural property was seized by the Nazis more than half a century ago and resides in various museums and private collections. Not just that on behalf of the Hopi and Acoma Native Americans and other indigenous peoples whose communal spiritual property--and not merely individual or communal cultural property is being sold on the auction block as if it is merely a series of desirable baubles. Not just the struggle to get museums to educate themselves and their audiences about the provenance aspects of artworks and their histories. But the struggle to get certain museums, auction houses--and nation-states--to consider seriously the importance of moral and not just legal issues. The morality/ethics vs law distinction is fundamental to the distinction between law and justice and to principles that institutions like museums and auction houses consistently lay claim to as essential to what they are: the preservers of civilization (yes, this blog may be seen as a continuation of several previous blogs written by Marc Masurovsky or me). 

Three different bits of news underscore this nicely. A California judge ruled that the Thyssen-Bornemisza Museum in Madrid, that holds within its collections a valuable 1897 Pissarro painting seized in 1939 by the Nazis from Lilly Cassirer, (in exchange for a few hundred dollars and a visa out of the country), need not return it to her great-children (their father, Paul, initiated the attempt for restitution when he found where the painting was, back in 2000) on legal grounds. Purely legal grounds: that the laws of Spain, in whose jurisdiction the issue must remain (although the painting moved thorough the American art world for 25 years during its post-war travels) do not mandate that the current owner need return it, since that owner, the museum, purchased the painting (from a Swiss-German baron) unaware of its provenance and thus that it was stolen property.

The judge did go out of his way to express hope that the museum would not allow the matter to end here, but would seek some extra-legal outcome, for moral reasons. So it is clear not only that laws are not always laws--had the judge pushed the case to be adjudicated within an American jurisdiction, the fact that the painting had been effectively stolen from Cassirer-- regardless of how many owners since that seizure by the Nazis had taken possession of it--may well have meant that the current owner doesn't own it. But in no case does anyone dispute the moral fact of the Cassirer ownership and entitlement. So: law wins, justice loses, morality loses. Civilization? a draw, I suppose. We need laws in order to be civilized, but when they permit immoral, unjust outcomes, then are they performing their intended job?

French law, like Spanish law, does not concern itself with the individual from whom an object was illicitly taken in the matter of property possession, just as long as the current owner paid for it--the presumption is that such a purchase was done in good faith and therefore the current possessor should not be penalized for not having bothered to inquire into the provenance of the property. And isn't it a heck of a coincidence that just a few days before the Cassirer verdict the French raised such a ruckus regarding the potential auctioning off of some royal historical artifacts: a 17th- century portrait of King Louis XIII, a portrait of the Duchess of Orleans, and an accounts book from the Chateau d'Amboise, a 15th-century royal residence in the Loire Valley? 

Fleur Pellerin, French Culture Minister

To be precise, the French government intervened to impose an export ban on these three items that descendants of France's former royal family (the House of Orleans) consigned to Sotheby's Paris offices. This was made possible--the State trumps the individual's rights with regard to his/her property--because France's cultural minister, Fleur Pellerin, declared the items as part of France's patrimony, its "national treasure." That designation gives the government legal ground for preventing these objects from going under the hammer and from leaving the country. 

Louis XIII in all his glory

This, of course, as readers of this blog will already now, came fast on the heels of the failure of the Conseil des Ventes--the government office that is tasked with overseeing all auctions and auction house activity in France--refused for the fourth time in barely a year to halt the auction of a number of objects sacred to the Hopi (Arizona) and Acoma (New Mexico) Native American tribes. These are all objects that, by definition can only have ended up in Paris auction houses, such as EVE and Drouot, by having been removed illicitly from these tribes and by being smuggled out of the United States--where the laws against dealing in the sacred and cultural property of Native Americans have become strict--and into France, which does not recognize the American laws as such.

Indeed the President of the Conseil de Ventes, each of these times when she has been confronted with a plea to remove sacred items from the auction block, has failed to do so on purely legal grounds: that the Hopi and Acoma are not entities entitled to legal standing within her jurisdiction (although they are, in the United states) and/or that those who represent the Hopi and the Acoma lack that standing for one technical reason or another. In other words, the moral issue is not one that even crossed her countenance; her ruling was shaped in pure legal terms.

So the sacred objects of Native Americans, essential elements of their identity, count for nothing in the French courts, although a historical account book--which is French, after all!--does. As Marc Masurovsky observed, in comparing the two French situations: "It would appear that sacred artifacts belonging to indigenous tribes the world over don't weigh much against royal artifacts." And while Evelio Acevido Carrero, managing director of the foundation that maintains the Thyssen-Bornemisza Museum noted gleefully how "very satisfying" it is to have an American court recognize the ownership rights of a Spanish museum--noted without a scintilla of irony--there is some other kind of irony in the tone of dismissal used by the French CVV toward both American law and American artifacts.

What all three cases have in common (among other things) is the question of where justice and morality fit into these legal questions. Los Angeles Judge John F. Walter invoked morality at the end of his decision, expressing hope that the museum would "do the right thing," even as he felt obliged to ignore "the right thing" in his decision, in the interests of the law; the French court and auction houses and the Spanish museum have both used the law in order to ignore justice and morality--have thus far made it clear that law is the armor in which they shall wrap themselves to protect themselves from justice and morality.

And then--lest we forget!--the Fred Jones, Jr, Museum, at the University of Oklahoma, continues to hang on desperately to “The Shepherdess” by Camille Pissarro that doesn't legally or morally belong to it, against the claim of Leone Meyer, a French woman, from whose father the Nazis stole it--thanks to legal technicalities having to do with the jurisdiction in which the case might be decided--in spite of the moral outrage of nearly everyone in the State of Oklahoma.

It would be nice if law, justice and morality could coincide in these cases that are linked by the lack of that coincidence. It's not that justice is blind, it's that too often many legal practitioners are blind to justice. So the struggle for moral outcomes goes on in the darkness.

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...

How to profit from State-sanctioned plunder: the Entartete Kunst case

The Nazi government enacted on May 31, 1938, the ”Act on Confiscations of Degenerate Art“ (“Gesetz über Einziehung von Erzeugnissen entarteter Kunst“) in order to legitimize its domestic purge of all works of art not deemed suitable in the New National Socialist Aryan Germany. By 1942, according to an inventory compiled by the Reich Ministry for Cultural Enlightenment and Religion (Joseph Goebbels' purview) at least 16,000 so-called “degenerate”works of art were accounted for in museums and cultural institutions controlled by the Nazi government.

The Nazi government selected a handful of art dealers—Ferdinand Möller, Bernhard Böhmer, Karl Buchholz and Hildebrand Gurlitt—to do their bidding and get rid of these works on the art market—read, the international art market—in order to raise cash and cleanse the German cultural landscape once and for all.

Thyssen-Bornemisza Museum
Source: Wikipedia

Institutions like the Thyssen-Bornemisza Museum in Madrid have touted these gentlemen as “saviors” of Germany’s modernist art treasures, probably because the Museum owns a number of German Expressionist works that were "saved" by Gurlitt and Buchholz. Interesting. A rare instance where thieves and their acolytes are treated as heroes. Obviously, there’s room for everyone in the pantheon of Aat.

As one can readily imagine, the Nazi-ordered global recycling of "degenerate" art was the biggest cultural fire sale orchestrated by any standing government, legitimate or other, for which there could only be one word—opportunity! And, indeed, opportunity struck high throughout the ensuing decades, even after the fall of the Third Reich in early May 1945.

Alfred H. Barr, Jr.
Source: The Art Story

Fast forward to 1964—an unusual year in the international auction market because a large number of these ‘degenerate’ works are put up for sale and snatched up by private collectors and museums, including American institutions. This is not to say that American museums did not seize earlier opportunities to absorb at prices not even fit for a flea market, priceless works of art by 19th and 20th century masters. The Museum of Modern Art (MOMA) under the enlightened leadership of Alfred Barr cashed in on various spectacular sales of ‘degenerate’ works such as the 1939 Lucerne, Switzerland, sale at Theodore Fischer’s gallery, and many subsequent transactions through third parties which allowed Barr to absorb an untold number of those works into the collections of MOMA.

In 1964, two works by Wassily Kandinsky come up for sale at Sotheby’s London—“Zweierlei Rot” which Dr. Gurlitt had ‘acquired’ for not even 100 dollars and “Ruhe” which was handled by Moeller. Both works hailed from the Berlin Nationalgalerie. “Zweierlei Rot” ended up in a private collection, giving the previous owner a handsome profit, while “Ruhe” was picked up by the Guggenheim Foundation together with dozens of other works by Kandinsky, an event that earned a small outcry in the German-language press.

While the Allied powers had denounced all transactions and laws entered into and decreed by the Nazi government between 1933 and 1945 to be null and void, thus illegal, the Allied Control Council (ACC) which ruled over the zones of occupation in Germany decreed by 1948 that the purging of German State cultural institutions had constitued a legitimate State-sanctioned act. One has to scratch one’s head in wonder at this ruling, justified by the Council by the fact that the Nazi government had not engaged in an overt act of discriminatory policy. Or could it be that, in order to avoid a wholesale purge and overhaul of the art market, it was best to let bygones be bygones? After all, if the ACC had declared the Nazi war against “degenerate” art to be illegal and consistent with its racial, anti-Semitic, xenophobic ideology, the acquisition of more than 16,000 works of art by institutions and individuals worldwide would have been subject to a massive “recall” and German state institutions placed in the awkward position of having to reclaim what they had cleansed, willingly or unwillingly.

The winners? 

According to museums and art world denizens, the general public is the winner. In the view of those who strive for ethical behavior in the global art market, there can be only one winner―the art market.