On Law, Museums and Nazi-era Looted Art in France and the United States

April 16, 2018

By Louise Carron

In December 2017, about 100 Old Master paintings plundered during World War II from private collections were put on permanent display at the Louvre Museum in Paris, France. Those works are cataloged in the National Recoveries Registry (MNR – Musées Nationaux Recuperation), a list of 2,143 orphan items, representing a fraction of what was recovered with the efforts of Rose Valland, the Monuments Men and many others at the end of the War. Previously, select MNR artworks were exhibited in Compiègne in 1950, and again in 2008 during a “Looking For Owner” exhibition at the Israel Museum, but mostly the MNR materials remained out of sight, dispersed among storages of regional museums.

The role of museums in the creation of looted-art registries

In 1998, recognizing the unresolved concerns surrounding Nazi-era looted art, forty-two countries, including France and the United States, participated in the Washington Conference on Holocaust-Era Assets and signed the Washington Principles, a set of non-binding soft laws and promised to implement “fair and just solutions” to restitute displaced art to its rightful owners, to “publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate pre-War owners or their heirs,” and to “establish a central registry of such information.”

The MNR registry was created 50 years before the Washington Conference, and it is unique because it immediately looked to repair wrongs perpetrated during the Nazi Occupation, picking up the torch from the Artistic Recuperation Committee created in 1945 as a temporary commission in charge of handling and spearheading claims of looted art. It was one of the first official bodies to be enacted, showing a concern for redemption.

Despite the Washington Principles being generally accepted as embodying the policy of the American government on restitution and the great likelihood of finding Nazi-era looted art in American institutions,^[i] the US does not have a centralized registry akin to the MNR, for two major reasons. First, the US were not victims of Nazi occupation, and did not have to deal with art being looted and taken out of the country, as opposed to most European countries. Second, majority of the American museums are not government owned, and the government cannot compel museums to comply with soft laws.

However, the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) encourage museums to comply voluntarily with the Washington Principles. Some American museums have started their own websites or pages displaying artworks that have provenance gaps, such as the MoMA, the Boston Museum of Fine Arts, or the National Gallery (a list can be found here), after having been shamed for doing little to identify potentially looted art that was gifted or bought by these museums following World War II. The fact that there is no central database, greatly affects search efficiency. Finding “fair and just solutions” is difficult on both sides of the Atlantic but as one restitution attorney observed:

“[The] fatal flaw to the US approach is the historical fact that all Nazi looted art cases arose in the Nazi period in Europe between 1933 and 1945. Therefore, in litigation, the deck is stacked against the claimant from the start, because in most cases the statute of limitations will have already run, or the claim will be barred by the equitable doctrine of laches (undue delay and prejudice).”^[ii]

Most court decisions in the US confirm that museums tend to rely on statute of limitations defenses to have a restitution claim dismissed and avoid resolution based on the merits.^[iii]

• For example, less than a decade after the Washington Conference, heirs of Martha Nathan claimed that in 1938, shortly after fleeing Germany for France, she had to sell under duress Paul Gauguin’s Street Scene in Tahiti (1891) and Vincent van Gogh’s Les Becheurs (1889), which were later acquired by the Detroit and Toledo museums. Both claims^[iv] were denied based on the statutes of limitations.
• In 2010 the heirs of collector Oskar Reichel claimed that a piece of his collection by Oskar Kokoschka was forcibly sold before being donated to the Boston Museum of Fine Arts. Here again, the museum successfully petitioned the court to rule heirs’ claim time-barred under Massachusetts three-year statute of limitations.^[v]
• That same year the MoMA was sued for restitution by the heirs of the German painter George Grosz, who was forced to flee Germany in 1933 and to sell three of his works, in possession of the institution.The museum prevailed against the heirs on the grounds that the New York statute of limitations ran because the heirs failed to take action after the museum refused to amicably restitute the paintings.^[vi]

In view of the frustrating use of statute of limitation defenses to avoid finding “fair solutions”, Congress recently enacted the Holocaust Expropriated Art Recovery Act 2016 (the “HEAR Act”), which provides for a uniform statute of limitations, and imposes a six-year timeframe. The clock now starts running when the plaintiff receives actual knowledge (or has sufficient knowledge to amount to actual knowledge) of either (1) the identity and location of the artwork or (2) the plaintiff’s possessory interest in the artwork. In early 2018, a New York court ^[vii] ordered the restitution of two Egon Schiele drawings to the heirs of Holocaust survivor, and confirmed the application of the HEAR Act, which is “intended to apply to cases exactly like this one, where Nazi-looted art is at issue.”

The derogatory system of the French MNR registry

In France, the State is only the safe-keeper of the MNR artworks on behalf of the rightful owners.^[viii]

French public museums in possession of the disputed artworks, such as the Louvre or the Musée d’Orsay, cannot refuse to restitute a piece, and the works can be exhibited but not lent to foreign institutions. Items listed on the MNR catalogue fall outside the common law rules usually applicable to restitution.

• First, as opposed to the general rule applied in restitution cases in France, the defendant cannot prove his good faith when he acquired the MNR work, since there is an irrebuttable presumption that the work has been purchased in bad faith. Unlike the general French property law that typically favors good faith purchasers,^[ix] the law that governs MNR art^[x] is similar to the rule applied in general American property law, where a thief does not acquire and cannot pass good title.^[xi]
• Second, MNR works are not subject to a statute of limitations, as opposed to the French common law window of five years as from the day where the rightful owner became aware, or should have been aware of the circumstances allowing him to exercise his right to claim restitution (article 2224 of the French Civil Code), which is relatively close to the provisions of the HEAR Act.

French state may nevertheless refuse to restitute an MNR work. In a case^[xii] heard by the Conseil d’Etat in 2014, the French highest administrative court ruled that three artworks sold in Paris by a Germano-American gallerist to an Austrian gallerist were effectively looted, and thus correctly put into the MNR registry, barring the good faith purchase defense. The pieces were seized in Austria at the end of the war, brought back to France, and registered on the MNR catalogue because of their suspicious provenance. Heirs of the Austrian collector claimed ownership of the works from the Ministry of Foreign Affairs in 1998, using the argument that the purchase was valid, that the pieces were not looted, and that they should never have been put on the MNR registry in the first place, which was refused to them in 2004, and confirmed in court ten years later. The Conseil d’Etat first underlined that MNR works are not the property of the State, who is the mere safe-keeper on behalf of the true owners and their heirs, and that there is no applicable statute of limitation. Second, proof of looting can be established through the suspiciousness of the circumstances: here, the facts showed that the art dealers were known for their privileged relationship with Nazi officials, with an especially high transaction price paid by Nazi funds. This was sufficient to say that the pieces were suspiciously acquired by the Austrian collector, which barred his heirs from claiming the paintings back.

The Recent Change in the French Approach

Despite the attractive legal characteristics of MNR works, a lot of them are sitting in storage rooms. For seventy years, the French government waited for owners to come forward, and since its creation, a mere fifty MNR paintings have been restituted to their rightful owners — including a Matisse. At a time where the Internet crushes the physical boundaries and provides a free way of obtaining information, the outdated online MNR database is the embodiment of the inadequacy of the French measure.

The 2018 display appears to be a positive change of course by the French Government (who also engaged experts to spearhead the work of commissions looking for the rightful owners). The Louvre maintains a vast majority of MNR works, and since last December, seventy-six paintings were interspersed throughout the museum together with the permanent collection displays, while thirty-one paintings are being showcased in two new dedicated (albeit minuscule) rooms, along with explanations on the history of the MNR registry.

The exhibition is organized as if you are walking into the private collection of a wealthy patron of the arts, in contrast to works usually displayed in a single, horizontal line. However, the new installation is hidden in a wing dedicated to 15th and 16th Century Flemish paintings, with very little indications, and visitors walk through the rooms without really stopping, to which must be added the fact that the Louvre is under construction and reorganization. Hard to find, but worth it for people who know what to expect there.

On the bright side, on February 12, 2018, just days after the 2018 display opened, an old master’s MNR triptych was recently restituted to a Jewish family who had lost it during World War II. Attributed to Joachim Patinir (circa 1483-1524), the Triptique de la Cruxifiction was handed back to the heirs of Hertha et Henry Bromberg by the French Minister of Culture, Francoise Nyssen, who took the opportunity to visit the new rooms in the Louvre, and stated her determination to double the efforts in favor of restituting MNR works.

This is shedding some light on obscure times in French history while educating the masses, in an attempt to give the works their dignity back, as they are being displayed in the worldwide institution that is the Louvre museum.

Hypotheticals and Case Law

How would two works of art by the same French impressionist master,^[xiii] such as Camille Pissarro (1830-1903), from the same hypothetical collection be treated if one ended up on the MNR list and the other ended up sold multiple times in the art market before settling in a private museum in the United States?

Non-MNR looted works are restituted on a case-by-case basis. In international conflicts of laws as to property cases, the French judge applies the law of the land where the property is when it is claimed^[xiv] and the claimant has the choice of jurisdiction.^[xv] In the US, each State applies its own choice-of-law rules.^[xvi]

Such a question of international private law was recently mentioned in a case^[xvii] before the French civil court where the judge surprisingly favored the heirs of the rightful owners, as opposed to the good faith purchasers. In May 2017, a work of art by Pissarro on loan from an American couple to a Parisian museum was seized and restituted six months later to the heirs of the original owner during the WWII. Camille Pissarro’s La Cueillette des Pois (1887) was plundered from Simon Bauer’s collection, and sold in 1944. After the war, Bauer petitioned the government in 1945 to declare the sale void in application of the law which canceled expropriations carried out by the Germans and the Vichy Government, and which allowed owners of plundered artworks to claim restitution provided they act within a certain time-frame. The court ordered the restitution of the painting, but the Pissarro was never actually restituted, and its whereabouts were unknown until 1995, when an American couple acquired it at auction. In early spring 2017, the painting resurfaced when they lent it to the Marmottan Museum in Paris for a retrospective on the artist’s work. The heirs of Bauer brought the case to court, and obtained a preliminary ruling ordering the temporary consignment at the Beaux-Arts Academy in May 2017, in view of the emergency of the situation, to prevent the painting from returning to the defendants before the case was resolved (which justifies the application of French law). On November 7, 2017, the French lower court ordered the restitution to the Bauer estate. Defendants used two classic arguments, both rejected by the court.

• First, they argued that they were bona fide purchasers; however, because the court ordered the restitution in 1945, under the ordinance of April 21, 1945, good-faith subsequent owners are presumed to have acted in bad faith — notwithstanding proof of the contrary.
• Second, defendants argued that the Bauer estate acted beyond the statute of limitations for restitution; here again, the court denied their argument, because the ordinance was inapplicable when the painting was in New York, therefore the statute started to run when the claimants became aware of the possibility to claim restitution, i.e. when Pissarro’s work came back on the French soil.

The 2017 decision raises many questions: is it a slippery slope? Will foreigners take the risk to lend their artworks to French museums, knowing that it could potentially be taken away from them? Or is this a one-of-a-kind decision without precedent value? This is a specific situation, where the original owner had taken all the necessary steps at the end the war to claim back his property, and because the court order in his favor was under a specific regime that did not recognize the good faith excuse — as opposed to French common law rules. Regardless, this only reinforces the duty of museums, auction houses, and other institutions to certify the provenance of the work, to ascertain that the piece of art has not been the object of a previous litigation adverse to the owners.

The issues faced by American museums

A lot of claims in the United-States are resolved outside of court. “The lawsuits may dominate the headlines, but … quiet diplomacy and private negotiations have led to the return of some significant artworks to their rightful owners.”^[xviii] One of the reasons may be that property law is a matter of state law, and there is no uniform, definite position on the law of restitution across the US. Another reason is the extraordinary cost of litigation. In that perspective, one of the New York State Holocaust Claims Processing Office’s objectives is to resolve disputes in the most creative way, as litigation is not always the most “fair and just solution” especially in matters of family and national honor.

Museums may be keen on settling, where litigation could engender particularly bad publicity as it shows that the museum failed its duty of verifying provenance of artworks. Such was the case in 2006 for the Kimbell Art Museum in Fort Worth, Texas, in a claim involving the romantic canvas of Glaucus and Scylla (1841) by William Turner. The painting belonged to the Jaffé estate, a family of French Jewish collectors, and was seized by the Nazis before being sold at auction and eventually ended up in Fort Worth. Back in France, one of the heirs learned that his family painting was a highlight of the Kimbell Art Museum, and asked them to return it in September 2005. The parties agreed that the painting would stay in the museum until June 2006, before returning to its original owners. The Turner was eventually sold at Christie’s Old Master painting sale a year later, where the Kimbell Art Museum seized the opportunity to acquire it again. This shows a conundrum of restitution cases, when the heirs eventually decide to sell the fruit of years of negotiation and litigation.

The case of Schoeps^[xix] was ultimately settled in 2009 on the morning of the first day of trial, but only after MoMA tried – and failed – to have the case dismissed based on the defense of laches. The heirs of Paul and Elsa von Mendelssohn-Bartholdy claimed that the couple had sold several Picasso paintings under duress, two of which were found at the MoMA and at the Guggenheim Museum. This very timely settlement can only be explained by the fact that the museums were reluctant to have the case resolved on the merits, and allows them to avoid the discovery process and court intrusion in their documents. Such was also the case in Portrait of Wally,^[xx] where the Leopold Museum agreed to purchase the litigious painting from the heirs of the original owner.

In a case resolved in 2015 concerning another Pissarro painting, La Bergère Rentrant des Moutons (1886), was located by the heirs of the pre-war owner in the United States. French businessman Raoul Meyer owned La Bergère Rentrant des Moutons (1886) which was stolen by the Nazi during WWII. In 2000, the University of Oklahoma received the painting as a donation from the Weitzenhoffer family, who had purchased it from a New York gallery in 1956. Meyer’s daughter Léone initially filed a case before the Southern District of New York, which was subsequently transferred to Oklahoma. Following efforts by the Oklahoma Museum to retain possession of the painting and a wide public outcry, the parties ultimately settled, agreeing on a shared ownership.

What’s next? What can the French and Americans learn from each other?

While statutes of limitations in France and in the US seem fairly similar, their different approaches to the good faith purchaser only meet when it comes to MNR works of art. The registry provides a centralized database, which evidently lacks in the US, where the problem of restituting Nazi-era looted art is still lingering. French and American attempts at “fair and just solutions” in matters of restitution tender limited protection of claimants, who still have to put in a lot of effort to see justice served.

***

Acknowledgment: The Author thanks her mother and her sisters back in Paris, who were sent on a treasure trail in the Louvre, with the mission to find the two tiny MNR rooms, and to make her a very detailed report of their impressions, along with pictures.

About the author: Louise Carron is a Spring 2018 Legal Intern with the Center for Art Law. She is a French LL.M student at Benjamin N. Cardozo School of Law. She is concurrently pursuing a Master’s Degree in Comparative Business Law at Université Paris Nanterre (France) and has a special interest in Intellectual Property, Art, and Entertainment. She can be reached at lcarron@law.cardozo.yu.edu.

Disclaimer: This article is intended for educational use only and does not purport to provide legal advice of any kind.

Sources and further readings:

• Samuel Petrequin, “Louvre Displays Art Looted by Nazis, Hopes to Find Owners”, Courthouse News, January 30, 2018. Available here.
• Anthony Faiola, “Art looted by the Nazis could be hiding in plain sight on the walls of Europe’s great museums”, Washington Post, June 15, 2014. Available here.
• Bianca Acquaviva, “The Latest In Nazi-Era Restitution Efforts”, Center for Art Law, March 24, 2016. Available here.
• Michael J. Bazyler, Holocaust Justice, The Battle for Restitution in America’s Courts, New York University Press, 2003.
• Holocaust Restitution, Perspective on the Litigation and its Legacy, edited by Michael J. Bazyler and Roger P. Alford, New York University Press, 2006.
• Thomas R. Kline, Restitution Roulette: A Comparison of U.S. and European Approaches to Nazi-Era Art Looting Cases, 2016, IFAR Journal, Vol. 16, n°3. Available here.
• WJRO, Report Concerning Current Approaches of United States Museums to Holocaust-Era Art Claims, June 25, 2015. Available here.
• List of Resolved Stolen Art Claims by countries, created by the Herrick Law Firm, available here.
• List of Monuments Men Foundation Significant Restitutions, available here.
• More about the HEAR act here.

Notes:

^[i] Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712, 720-21 (9th Cir. 2014), cert. denied, 135 S.Ct. 1158 (Jan. 20, 2015).

^[ii] “Nazi Looted Art Commissions After the 1998 Washington Conference: Comparing the European and American Experiences,” paper presented by David J. Rowland to the New York County Lawyers Association’s Panel Should Stolen Holocaust Art Be Returned? Legal and Policy Perspectives and Recent Case Developments, Thursday, March 21, 2013, page 5.

^[iii] For a more detailed explanation, see WJRO, Report Concerning Current Approaches of United States Museums to Holocaust-Era Art Claims, June 25, 2015. Available here.

^[iv] Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996 (E.D. Mich. Mar. 31, 2007).

^[v] Museum of Fine Arts, Bos. v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010).

^[vi] Grosz v. Museum of Modern Art, 403 F. App’x 575 (2d Cir. 2010), aff’g 772 F. Supp. 2d 473 (S.D.N.Y. 2010).

^[vii] Reif, Fraenkel, and Vavra v. Nagy, No. 161799/2015 (N.Y. App. Div, 2018). Decision available here.

^[viii] Source: “Œuvres culturelles spoliées ou au passé flou et musées publics : bilan et perspectives”, report by Senator Corinne Bouchoux on looted art and public museums, January 2013.

^[ix] Under the rule that possession of movable property presumes title over the property (French Civil Code art. 2276)

^[x] Decree no. 43-1344, Sept. 30 1949.

^[xi] See Bakalar v. Vavra, 619 F.3d 136, 140 (2d Cir. 2010).

^[xii] CE, Mesdames D. et B., July 30, 2014, no. 349789.

^[xiii] A lot of cases relate to French Impressionist paintings, “which were a favorite target of Nazi looters.” (Norman Kempster, “Tracking the Nazi Plunder” Los Angeles Times, Nov. 30, 1998, F1).

^[xiv] French Civil Code, art. 2276.

^[xv] French Code of Civil Procedure, art. 2.

^[xvi] See e.g. Autocephalous Greek Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc., 917 F.2d 278, 286 (7th Cir. 1990).

^[xvii] TGI Paris, Bauer v. Toll, 7 nov. 2017, n° 17/58735.

^[xviii] Michael J. Bazyler, Holocaust Justice, The Battle for Restitution in America’s Courts, 2003, New York University Press, p.249.

^[xix] Schoeps v. Museum of Modern Art, 603 F. Supp. 2d 673, 674 (S.D.N.Y. 2009) (Schoeps III).

^[xx] United States v. Portrait of Wally, No. 99-Civ.-9940 (S.D.N.Y., filed Sep. 22,1999).