By David Jenkins.

The University of Oklahoma and the Musée d’Orsay have found themselves at the heart of a legal dispute over the fate of Camille Pissarro’s “La Bergère Rentrant des Moutons” (Shepherdess Bringing in Sheep), dated 1886 (the “Painting”). La Bergère has already been the subject of litigation which resulted in a settlement in 2016; the new dispute threatens the enforcement of that agreement and may have a powerful impact on the future of restitution of Nazi-looted art.

Beginning in 2013, Léone Meyer,[1] a French Holocaust survivor, has been fighting to recover the Painting that was gifted to the University of Oklahoma in 2000.[2] Even though the parties settled in 2016, following an exhibition in the Fred Jones Jr. Museum at the University of Oklahoma, Meyer made an effort to allow the Painting to remain in France and filed suit to nullify the settlement. The following will review the events that have led to the present standstill and consider potential consequences on future restitution claims and the applicable law for the heirs of Nazi-looted art.

Background

Before World War II, the Painting belonged to the Jewish family of Yvonne Bader and Raoul Meyer; their collection was seized by the Nazis in 1941. The Painting disappeared until 1951 when Meyer rediscovered it in Geneva. He filed suit in Swiss court to have the Painting returned, only for the court to rule that the statute of limitations had passed, denying Raoul Meyer the right to reclaim his stolen property.[3]

The Painting left the Meyer family’s radar for a period, during which time the work ended up in the David Findlay Gallery in New York, where it was purchased by Oklahoman oil baron Aaron Weitzenhoffer in 1957.[4] In 2000, Weitzenhoffer’s wife Clara gifted the work, along with 33 others, to the Fred Jones Jr. Museum of Art at the University of Oklahoma following Weitzenhoffer’s death.[5] The Painting remained at the University of Oklahoma (“OU”) until March 26, 2012, when Léone Meyer learned of its whereabouts via a blog post from the Holocaust Art Restitution Project.[6] Following the failed demand for return of the Painting, Meyer commenced her legal action in New York.

Camille Pissarro, La Bergère Rentrant des Moutons (Shepherdess Bringing in Sheep), 1886. Public Domain via Wikimedia Commons.

The First Case

Meyer first filed suit against OU for the return of the painting on May 13, 2013.[7]

In response, OU cited the original 1953 Swiss decision against Raoul Meyer in which the court determined that the statute of limitations for the unlawful taking of the Painting had run out, and stated that the University would return the painting only if a court ordered it.[8] Meyer, meanwhile, argued unjust enrichment for her claim, stating that proper provenance research that would have revealed the Painting’s history of theft had not been carried out.[9] Following the suit’s filing, four Oklahoma lawmakers filed a resolution in support of Meyer’s claim, with State Representative Paul Wesselhoft calling the return of the Painting “the right and moral thing” to do.[10]

The lawsuit carried on for three years and was transferred to the Western District of Oklahoma on April 16, 2015. Before going to trial, an out-of-court settlement was reached on February 22, 2016 (“the Settlement”).[11] The Settlement transferred ownership but not possession of the Painting to Meyer.[12] In practical terms, the Settlement split the custody of the Painting between two different museums, simultaneously recognizing Meyer’s ownership of the Painting and acknowledging that Weitzenhoffer acted in good faith when he purchased it.[13] Although Meyer had always expressed her desire to donate the painting to the Musée d’Orsay in Paris, the Settlement dictated that the Painting would be displayed both in France and Oklahoma, first in France for five years, then alternated between Oklahoma and France for three years at each location.[14] On October 12, 2016, the Lower Court of Paris determined that the Settlement was enforceable on French territory, an equivalent of an exequatur judgment required by the Settlement.[15] This ruling seemed to confirm the durability of the Settlement despite French and US law differing on the issue of looted art.

Back to Court: New Issues in 2020 and Beyond

Upon reaching the Settlement with OU, Meyer wished that the Painting would be displayed at the Musée d’Orsay in Paris.[16] Thereafter, the first signs of trouble appeared.[17] The Museum agreed to exhibit the work, but refused to add the Painting to its permanent collection, citing concerns over the “burdensome and draconian travel conditions that the University insisted upon.”[18] Meyer feared that other French museums would feel similarly about permanently housing the work while it was under the stipulations of the Settlement. A pressing issue considering the Settlement dictated that failure to donate the Painting to a museum that would take up “the eternal rotation of the Painting” would lead to Meyer losing ownership.[19] In response, Meyer went back to court, this time in France.[20]

On October 29, 2020, just a few months before the Painting was set to make its first return to Oklahoma, Meyer brought action in Paris to invalidate the Settlement, calling for OU to appear in a lawsuit in the Tribunal Judiciaire de Paris (Paris District Court).[21]

The timing and setting for the filing were both significant. In France, on September 30, 2020, the Paris Court of Appeals ruled that three paintings by French painter André Derain be returned to the heirs of Jewish art dealer and international gallerist René Gimpel. In that decision, the court cited a 1945 French Legislative Ordinance which established that any purchaser of Nazi-looted art was a bad-faith purchaser under any circumstance. Thus, all subsequent purchasers, good faith or not, would have no valid claim to the artwork once looted.[22] Meyer cited both the Gimpel decision and the Ordinance in her action to nullify the Settlement, stating the Settlement was invalid under French law because Weitzenhoffer could not have purchased the work in good faith. Thus, neither he nor OU ever had any valid legal claim to the painting, despite the Settlement’s language recognizing Weitzenhoffer as a good-faith purchaser.[23] Before filing suit in October of 2020, Meyer and the Musée d’Orsay had offered OU a loan exhibition including works by Renoir in place of sending the Painting back across the Atlantic.[24] Meyer has stated that, should she succeed in recovering the Painting she intends to gift it to the Musée d’Orsay.[25]

As for the United States, the 2016 Settlement was reached just under a year before the The Holocaust Expropriated Art Recovery (“HEAR”) Act came into effect in the US.[26] The act gives US claimants to Nazi-looted art 6 years after discovering the current whereabouts of the artwork to take action, a change which may have negated some of OU’s defenses concerning the statute of limitations on recovering the art. The HEAR Act may also grant some credence to the notion that the Settlement was not duly favorable to Meyer.[27]

In response, the University of Oklahoma filed a motion to compel Meyer to comply with the Settlement, which the Western District of Oklahoma granted on November 20, 2020, ordering Meyer to cease her legal proceedings in France.[28] Subsequently the Paris Judicial Court ordered the dispute be mediated and Meyer was found in contempt of court by the Western District of Oklahoma.[29] The decision from the Tribunal Judiciary de Paris is expected on April 13, 2021.[30]

Takeaways

The arrangement reached in 2016 Settlement is not entirely novel. Split or joint custody of an artwork between multiple museums in different countries has precedent. Fellow Paris Museum, the Louvre, and the Rijksmuseum in Amsterdam reached a joint ownership agreement in 2016 for a pair of Rembrandt paintings, featuring a similar alternating schedule of each location displaying the works for a period of years.[31] Additionally, the Tate in Britain and the Museum of Contemporary Art in Australia organized a 5-year program of joint acquisitions and split custody of a number of works in 2018.[32] It may be the first agreement where a Nazi-era looted artwork is the subject of an effort to find a creative solution and where an heir of the original owners is a party to the agreement.

There are, however, factors that set the Meyer-OU Settlement apart from other split-custody agreements. First and foremost, the Painting here is not the subject of a jointly consensual and beneficial purchase but instead a lawsuit regarding the theft of property from victims of the Nazi persecution. No one has purchased the Painting from Meyer, instead the Settlement created a joint custody agreement in which one party was recognized as the lawful owner of the work but was not given full possession of the work and was not left in a position from which she could freely sell or donate it. While most joint acquisition and split custody agreements reached between museums are the result of long-term collaboration and cooperation, the Settlement was the resolution to a dispute, and a compromise to a situation in which both parties expressed a desire to obtain full possession of the Painting. This distinction may also be a factor in the difficulty of finding a museum willing to agree to the perpetual rotation outlined in the Settlement. While most museums entering into a split custody agreement will be negotiating the terms of a rotation themselves, the Musée d’Orsay in this case was being presented with the terms already determined in the settlement. Meyer and her lawyer have stated that she accepted the Settlement “due to the fear of never seeing the Painting again.”[33] Such circumstances make it difficult to compare Meyer’s initial Settlement, and possible future settlements for split custody of Nazi-looted art, to existing split custody agreements.

Looking then specifically to settlements regarding Nazi-looted art, it is possible this case will have a negative impact on the prospects for future deals over the restitution of looted art. Both the American Association of Museums and the Association of Art Museum Directors have already spoken out amid the renewed feud, wishing that things be resolved in accordance with the original Settlement and somewhat forebodingly hoping that “future potential consensual resolutions to Nazi-era claims will not be negatively affected by the current proceedings.”[34] Other museums may become unwilling to partake in agreements requiring regular transportation of art, while the purchasers and current possessors of looted art may be less prone to agree to similar settlements knowing that they have been set aside. The ongoing difficulties in this case may also raise questions for the claimants of Nazi-looted art. Meyer, as the recognized heir and lawful owner of the Painting, was left in a position in which she was not able to freely sell or give her property as she wished, and was effectively unable to find a museum that would accept the terms of her Settlement. Seeing that left Meyer in a position of wanting to undo the agreement, the heirs in potential future claims may be less likely to agree to anything similar.

Finally, the outcome of Meyer’s case will likely set some notable, though not binding, precedent for whether contracts or agreements between parties in restitution cases may supersede the restitution laws of a nation. France’s 1945 Ordinance has no counterpart in the United States, and it may impact future deals if US institutions believe they will have to reckon with other countries’ laws when they become involved in disputes over looted art. Whether the Settlement is ultimately upheld or not, the efforts to reach fair and just solutions in Nazi-era looted art cases will not get any easier.


UPDATE (as of 05/19/2021): On May 10, 2021, the French Court dismissed Meyer’s claim for sequester, where she attempted to keep the painting in France by overturning the settlement agreement. The Court cited jurisdictional issues and Meyer’s failure to meet her burden of proof as reasons for the dismissal. A final judgment on Meyer’s claim that the painting should be returned to her possession based on the French Ordinance of April 21, 1945 is set to occur on June 2, 2021.


Additional Reading:

Endnotes:

  1. The Meyers adopted Léone in 1946 because her own parents were deported and killed during the Holocaust.
  2. Sarah Cascone, Holocaust Survivor Sues for Return of Looted Camille Pissarro Painting, artnet new (Mar. 4, 2014).
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. Complaint, Meyer v. Bd. of Regents of the U. of Oklahoma, et al, 13-CIV-3128 (S.D.N.Y. filed May 9, 2013); Case Preview: Meyer v. Bd. of Regents of the U. of Oklahoma, or How long will Oklahoma herd Pissarro “Sheep”?, The Center for Art Law (Nov. 26, 2013).
  8. David Ng, Pissarro Painting at University of Oklahoma Under Dispute, Los Angeles Times (Feb. 27, 2014).
  9. Case Preview: Meyer v. Bd. of Regents of the U. of Oklahoma, or How long will Oklahoma herd Pissarro “Sheep”?, The Center for Art Law (Nov. 26, 2013).
  10. Id.
  11. Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  12. Sarah Cascone, University of Oklahoma Will Return Camille Pissarro Painting to Holocaust Survivor, artnet news (Feb. 24, 2016).
  13. Randy Ellis, Silas Allen, University of Oklahoma settlement agreement revealed in Nazi-looted art case, The Oklahoman (Feb. 23, 2016).
  14. Id.; Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  15. Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  16. Id.
  17. Sarah Cascone, A Dispute Over a Pissarro Painting Looted by Nazis Was Settled Four Years Ago. Now, It’s Going Back to Court, artnet news (Nov. 2, 2020).
  18. Nuria Martinez-Keel, OU Called to Court Over Nazi-Stolen Painting, The Oklahoman (Nov. 3, 2020).
  19. Id.
  20. Id.
  21. Id.
  22. Summons, 5:15-cv-00403-HE (Mar. 11, 2021); Angélie Pompée, Case Review: René Gimpel’s Heirs Fight for Restitution by French Museums (2020), Center for Art Law (Feb. 1, 2021).
  23. Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  24. Sarah Cascone, A Dispute Over a Pissarro Painting Looted by Nazis Was Settled Four Years Ago. Now, It’s Going Back to Court, artnet news (Nov. 2, 2020).
  25. Id.
  26. Max Kutner, Obama Signs New Law To Help Recover Nazi-Looted Art, Newsweek (Dec. 12, 2016).
  27. Id.
  28. Nuria Martinez-Keel, Nazi-Looted Painting Should Return to OU, Federal Judge Rules, The Oklahoman (Nov. 21, 2020).
  29. Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  30. Id.
  31. Laetitia Volga, Louvre and Rijksmuseum to share Rembrandts bought from Rothschild, Reuters (Mar. 10, 2016).
  32. Michael Young, Tate and Museum of Contemporary Art Australia Announce Third Round of Joint Acquisitions, ArtAsiaPacific (Apr. 4, 2018).
  33. Summons, 5:15-cv-00403-HE (Mar. 11, 2021).
  34. Nuria Martinez-Keel, Nazi-Looted Painting Should Return to OU, Federal Judge Rules, The Oklahoman (Nov. 21, 2020).

About the Author: David Jenkins is a legal intern at the Center for Art Law and a second-year student at the University of Texas School of Law. David is currently the President of the Texas Law Art Association and a regular volunteer at art institutions in Austin, Texas.