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Labeling Misappropriated Nazi-Era Art: Issues with Compelling Signage at New York Museums

May 11, 2023

painting of Pissarro on display at the Jewish museum with a lable

By Sophia Williams

From 1933 to 1945, during the Nazi party’s rise to power, the Nazis looted, confiscated, or involuntarily transferred more than half a million artworks owned by Jewish art collectors and other victims.[1] Following Nazi party looting before and after World War II, thousands of artworks ended up in museum collections around the world, including in New York, and remain there today.[2] A recent act passed in August 2022 “to amend the education law, in relation to notice of art stolen during the Nazi era in Europe” (the “2022 Act”) mandated New York State museum transparency for art involuntarily transferred from owners during the Nazi era.[3] The amended statute, N.Y. Educ. Law § 233-aa (the “Statute”) does so by requiring museums to display this provenance history through a physical notice accompanying the exhibition of the artwork.[4] However, the law presents several challenges in defining what artworks it covers, what behaviors museums must adopt to identify artworks in compliance with the Statute, and whether it may unconstitutionally conflict with museums’ First Amendment rights.

According to the 2022 Act:

“Every museum which has on display any identifiable works of art known to have been created before nineteen hundred forty-five and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty three—nineteen hundred forty-five) shall, to the extent practicable, prominently place a placard or other signage acknowledging such information along with such display.”[5]

HISTORICAL BACKGROUND

An estimated 600,000 artworks were looted from Jewish people during the Nazi era.[6] The New York law defines the Nazi era as between 1933 and 1945, covering coercively exchanged property from the start of Hitler’s rise to power to the end of World War II. The justification for the Statute declares, “[t]he looting was not only designed to enrich the Third Reich but also integral to the Holocaust’s goal of eliminating all vestiges of Jewish identity and culture.”[7] Furthermore, “many museums now display this stolen art with no recognition of their provenance.”[8] This plunder disseminated worldwide, with thousands of artworks entering the collections of prominent cultural institutions in Europe and in the U.S.[9] Restituting art looted during the Holocaust not only returns stolen property to rightful owners but also restores cultural heritage and links to history for present generations. Additionally, acknowledging these involuntary losses of cultural identity is key to facilitating transparency around and education of the Nazi era.

The Statute passed in New York State in August 2022 is part of a legislative package to “honor and support Holocaust survivors in educational, cultural, and financial institutions,” and to put forth paths to improve education about the Nazi period.[10] The Claims Conference: Conference on Jewish Material Claims Against Germany, an organization that secures material compensation for Holocaust survivors around the world, produced a study in 2020 that examined the knowledge of Americans under 40 regarding the Holocaust, the number of Jews the Nazis killed, and the ability to name at least one camp or ghetto.[11] New York was one of ten states that ranked lowest in this knowledge, and the results of this study prompted state lawmakers Anna M. Kaplan (Port Washington), Alessandra Biaggi ((Bronx/Westchester), Simcha Felder (NY Senate District 22), and Mike Martucci (NY Senate District 42) to investigate ways to improve Holocaust awareness, leading to the creation and passage of the amendment to New York State Education Law § 233-aa.[12]

NYS Museums, as educational institutions that to a significant extent protect cultural heritage and share history with the public, have the educational responsibility to disclose histories of the Nazi era that may accompany artworks in their collections. As Kaplan commented about the Statute: “with the history of the Holocaust being so important to pass on to the next generation, it’s vital that we be transparent and ensure that anyone viewing artwork stolen by the Nazis understand where it came from and its role in history.”[13] By mandating site-specific publication of relevant information at museums, the 2022 Statute encourages recognition of how works of art found in New York’s institutions’ collections intersected with the Nazi era and with the expropriation of cultural property.

IDENTIFYING MISAPPROPRIATED ART UNDER THE STATUTE

The Statute establishes the definition of applicable property as artworks that “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era.”[14] The definition demonstrates the legislation’s intent to recognize the extensive ways art was improperly transferred from rightful owners during the Holocaust, ranging from pieces stolen outright to those sold under involuntary means.

However, many conflicts between the current possessors of artwork and claimants in recent decades illustrate how complex it is to actually determine whether a piece in any given collection meets the definition of improper transfer set forth by the Statute. For example, when descendants of victims undertake litigation to reclaim wrongfully dispossessed property, their claims may be barred if they fail to prove an artwork was improperly transferred or, alternatively, may be barred on technical defenses before the court addresses the substantive matter.[15] Additionally, conflicts between descendants and current possessors of art works may be resolved and the piece restituted to descendants before a museum acquires it for its collection. Or, they may be resolved in private agreements between parties prior to entering litigation or during litigation. In such cases, the question for the institution arises: does the Statute apply?

When determining whether a work of art falls under the purview of the Statute, museums must perform extensive provenance research. Provenance research initiatives at the Metropolitan Museum of Art (the Met) identified 53 works of art that were misappropriated by the Nazis that were “restituted to their rightful owners” and then purchased by or donated to the museum.[16] One example is a work by Claude Monet titled The Parc Monceau, painted in 1878.[17] The Nazis seized the painting from the bank of Jewish collector Alfred Lindenbaum and transported it to the Jeu de Paume, an art center in Paris the Nazis used to store looted art.[18] In 1942, Hermann Goering conveyed the painting to art dealer Commandatore Eugenio Ventura of Florence, Italy.[19] In 1946, following the end of World War II, the French Commission de Récupération Artistique, an organization dedicated to the processing and restitution of Nazi plunder, retrieved the painting from Rome and returned it to Lindenbaum’s heirs, who then sold it to the Met 13 years later.[20]

The Statute asserts that museums are to place signage accompanying artwork with a history of wrongful expropriation.[21] However, it is not straightforward whether the law obliges museums to attach labels to all artworks that were misappropriated during the Nazi era. For instance, it is unclear if the signage will also include property once misappropriated and later restored to rightful ownership or if it will only include artworks that remain misappropriated.

Similarly, there is ambiguity regarding which artworks are to be assigned placards when considering works for which claimants sought restitution from an institution through legal recourse and then ultimately reached a settlement with the museum. In 2009, Julius Schoeps, a descendent of art collector Paul von Mendelssohn-Bartholdy, who sold two Picassos (Le Moulin de la Galette and Boy Leading a Horse) in 1935 in Germany, requested the Solomon R. Guggenheim Foundation (the Guggenheim) and the Museum of Modern Art (MoMA) return the paintings, arguing they were sold under involuntary circumstances.[22] The museums filed suit against Schoeps, asking for the court to rule on the validity of their titles.[23] Ultimately, the museums and Schoeps reached a settlement, and the paintings remain in the museum collections today.[24]

Paul von Mendelssohn-Bartholdy ran a family bank that German municipalities targeted and boycotted in 1933.[25] Prior to 1933, Von Mendelssohn-Bartholdy had never attempted to sell any part of his art collection, and only with his livelihood under threat, began to sell various pieces. [26] The governing law at the time voided contracts if a party was at a “disadvantage in bargaining,” and the factual events pressuring von Mendelssohn-Bartholdy at the time would comprise such disadvantage.[27] However, the museums now legally possess both works, and the court did not resolve the question of whether an unlawful transfer occurred originally. Since the possessing museum and owners’ descendant had already reached a settlement, the court did not determine whether Schoeps’ predecessor’s loss of the paintings met the definition of having changed hands under involuntary means. Does the New York Statute compel the Guggenheim and MoMA to exhibit Picasso’s Le Moulin de la Galette and Boy Leading a Horse with placards indicating their history? It remains unclear.

The Guggenheim publishes the following on its provenance research: “Of approximately 1,025 prewar European works in the Guggenheim Collection, the museum’s research staff initially identified approximately 275 works that are known to have, or might reasonably be thought to have, changed hands in continental Europe between 1932 and 1946.”[28] This language is reminiscent of the Statute’s definition of covered artworks, including artworks “having changed hands due to theft, seizure, confiscation, forced sale or other involuntary

means.”[29] However, in response to the Statute, the Guggenheim has said that it is “continuing its research” but “is not aware of works in its collection looted by Nazis.”[30] Thus, while the Guggenheim’s research identifies 275 artworks that changed hands during the Nazi era, the museum has identified no works in its collection that changed hands in involuntary circumstances, and assesses that no works in its collection, to present knowledge, are covered under the New York Statute. This statement illustrates potential discrepancy that may arise between the statue’s intent of which works ought to be covered, and museums’ definitions of the status of Nazi era artworks in their collections.

INSTITUTIONAL KNOWLEDGE OF MISAPPROPRIATED ART

In explaining which art on display at New York State museums has Nazi-era history that the law would apply to, the Statute lists several types of problematic transfers in ownership during the Nazi era and also characterizes the art as having to be “identifiable” to museums.[31] The Statute’s requirement that an artwork’s ownership status be identifiable to museums implies that in order for a museum to fulfill its obligations under the law, it ought to conduct provenance research to ascertain how the art in its collection changed hands during the Nazi era.

However, the Statute stops short of a requirement for museums to conduct provenance research. Instead, it only requires museums to label “identifiable” works of art in their collection “known to have” changed hands during the Nazi era.[32] If exchanges are ‘unidentifiable’ or ‘unknown’ to a museum – or if an institution simply does not identify an artwork’s problematic provenance – the museum may leave problematic artworks unlabeled. Or, they may simply opt to no longer exhibit the artwork. The museum would still be in compliance with the Statute’s requirements if they do not make known provenance that is problematic, which calls into question the efficacy of the law and the ability to enforce its aim.

REQUIRED EXHIBITION SIGNAGE AS UNCONSTITUTIONAL COMPELLED SPEECH

One interpretation of the New York law is that by requiring museums to create signs with information about the artworks in their collections, it compels speech and violates the first amendment right to speak freely. In several cases, the Supreme Court has asserted that the First Amendment, which states that no law may prohibit the free exercise of speech, not only protects the right to speak but the right to not to speak.[33]

The outcome of landmark compelled speech cases such as West Virginia State Board of Education v. Barnette provides an exemplary lens to evaluate the recent New York Statute and its vulnerability to violating museums’ First Amendment right to refrain from expression. In 1943, West Virginia State Board of Education v. Barnette assessed whether a resolution that ordered students to salute the American flag violated the constitutional right to free speech.[34] The Supreme Court found the resolution unconstitutional.[35] The opinion stated that if the Court sustained the resolution, it would mean that the First Amendment, “which guards the individual’s right to speak his own mind,” also allowed “public authorities to compel him to utter what is not in his mind.”[36] This decision asserts that compelled speech, that is, expression required by a law that an entity may not like to express, is unconstitutional.

Similarly, the New York Statute compels museums to express a message about the potentially dishonorable nature of works in their collections through placards on their walls. This may be construed as governmentally compelled speech that the museums would not have uttered otherwise.

CONCLUSION

Multiple elements of the 2022 New York Statute leave unsettled how museums will interpret and apply its directive to their collections. From the varied types of expropriation that occurred in the Nazi era to the divergent ownership statuses that accompany artworks, including legally owned by the museum, unresearched, or currently disputed, identifying which artworks in a museum collection should have placards is highly complex.

Furthermore, museums in New York and nationwide have achieved disparate levels of provenance research in their collections and conducting provenance research is not legally required.[37] This leaves a serious loophole in the enforcement of the law. If museums have not identified their artworks as misappropriated, they have no obligation to set in place signage. Immense funding and resources are directed towards researching Nazi-era histories that overlap with a museum’s collection. Now, there may be a lack of incentive for museums to conduct this research in order to announce problematic histories and potentially call into question art they possess. It is therefore difficult to imagine museums eagerly adopting the Statute’s charges for identification and designation of involuntarily expropriated art.

Additionally, it may not be constitutional for a state law to require museums to convey a certain message or to obligate institutions to post written signage. There are protections against compelled speech for people and entities including museums.

These ambiguities position the law as a symbolic message encouraging increased awareness and education of the subject rather than a catalyst for change in how museums present art with Nazi-era history. Time will reveal whether museum attendees see a new smattering of placards next to paintings they visit, acknowledging previously silent histories, or whether the legislation will largely fail to engender significant action.

About the Author

Sophia Williams, Center for Art Law Spring 2022 intern, is interested in legal issues surrounding the commercial art world, artist rights, and illicit markets. Sophia graduated from Princeton University with a B.A. in Architecture and Urban Studies and has since worked in NYC at an auction house and art gallery. In the summer of 2022, she was a post-graduate certificate student in art crime and cultural heritage protection at the Association for Research into Crimes Against Art (ARCA) in Amelia, Italy.

BIBLIOGRAPHY

  1. U.S., New York State Senate, Senate Bill S117A, https://www.nysenate.gov/legislation/bills/2021/S117, last visited on Apr. 25, 2023. ↑
  2. Hickley, Catherine, “Has New York’s law aimed at identifying Nazi-looted art in museums worked?,” The Art Newspaper, April 7, 2023, https://www.theartnewspaper.com/2023/04/07/new-york-nazi-looted-art-museums-setbacks. ↑
  3. An act to amend the education law, in relation to notice of art stolen during the Nazi era in Europe, S. 117A, 2021-2022 Leg. Sess. (N.Y. 2022). ↑
  4. N.Y. Educ. Law § 233-aa, at 15 (McKinney); see also id. at 1(a): Museums are defined as “any institution, including but not limited to museums, historical societies, zoological gardens, aquariums, botanical gardens, and arboreta, having collecting as a stated purpose in its charter, or owning or holding collections, or intending to own or hold collections, that is a governmental entity or not-for-profit corporation. The term museum does not include the state museum.” ↑
  5. N.Y. Educ. Law § 233-aa (McKinney). ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. ↑
  9. Id. ↑
  10. New York State Government, Governor Hochul Signs Legislation to Honor and Support Holocaust Survivors in Educational, Cultural, and Financial Institutions, (August 10, 2022) https://www.governor.ny.gov/news/governor-hochul-signs-legislation-honor-and-support-holocaust-survivors-educational-cultural. ↑
  11. Claims Conference, First-Ever 50-State Survey on Holocaust Knowledge of American Millennials and Gen Z Reveals Shocking Results, , (September 16, 2020) https://www.claimscon.org/millennial-study. ↑
  12. ↑ Luke Tress, New York law on Nazi-looted art aims to shine light on lesser-known Holocaust evil, New York State Senate, (Sept. 2, 2022) https://www.nysenate.gov/newsroom/in-the-news/anna-m-kaplan/new-york-law-nazi-looted-art-aims-shine-light-lesser-known.
  13. New York State Government, supra note 10. ↑
  14. N.Y. Educ. Law § 233-aa (McKinney). ↑
  15. Jennifer Anglim Kreder, Fighting Corruption of the Historical Record: Nazi-Looted Art Litigation, 61 U. Kan. L. Rev. 75 (2012). ↑
  16. The Met, Nazi-Era Provenance Research, https://www.metmuseum.org/policies/nazi-era-provenance-research, last visited Apr. 20, 2023; the Met, Collection / Restituted Works in the Collection / 53 records, https://www.metmuseum.org/art/object-package?pkgids=324&rpp=60&pg=1, last visited Apr. 20, 2023. ↑
  17. The Met, The Parc Monceau, https://www.metmuseum.org/art/collection/search/437108?&pkgids=324&ft=*&offset=0&rpp=20&pos=15, last visited Apr. 20, 2023. ↑
  18. The MET, The Parc Monceau: Provenance, https://www.metmuseum.org/art/collection/search/437108?&pkgids=324&ft=*&offset=0&rpp=20&pos=15, last visited Apr. 20, 2023. ↑
  19. Id. ↑
  20. Id. ↑
  21. N.Y. Educ. Law § 233-aa (McKinney). ↑
  22. Schoeps v. Museum of Mod. Art, 594 F. Supp. 2d 461 (S.D.N.Y. 2009); see also Patty Gerstenblith, Art, Cultural Heritage, and the Law: Cases and Materials, 756-57 (Carolina Academic Press, 4th ed. 2019). ↑
  23. Schoeps v. Museum of Mod. Art, 594 F. Supp. 2d 461 (S.D.N.Y. 2009); see also Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, 205 (Ankerwicke, 2017). ↑
  24. Gerstenblith, supra note 24; The Guggenheim, Pablo Picasso: Le Moulin de la Galette, https://www.guggenheim.org/artwork/3411, last visited Apr. 20, 2023; MoMA, Pablo Picasso: Boy Leading a Horse, https://www.moma.org/collection/works/79994, last visited Apr. 20, 2023. ↑
  25. O’Donnell, supra note 25, at 9, 204. ↑
  26. Id. ↑
  27. Id. ↑
  28. The Guggenheim, Provenance Research, https://www.guggenheim.org/about-the-collection/provenance-research, last visited on Apr. 25, 2023. ↑
  29. N.Y. Educ. Law § 233-aa (McKinney). ↑
  30. Maysoon Khan, New York museums to disclose artwork looted by Nazis,” The Seattle Timest, September 16,

    2022, https://www.seattletimes.com/nation-world/new-york-museums-to-disclose-artwork-looted-by-nazis, last visited on Apr. 25, 2023. ↑

  31. N.Y. Educ. Law § 233-aa (McKinney). ↑
  32. Id. ↑
  33. U.S. Const. amend. I; see also Russell L. Weaver & Catherine Hancock, The First Amendment: Cases, Problems and Materials, 538 (Carolina Academic Press, 2020). ↑
  34. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). ↑
  35. Id. ↑
  36. Id, at 634. ↑
  37. Marc Masurovsky, The Current State of Nazi-Era Provenance Research in Provenance Research

    Today (Arthur Tompkins ed., 2021). ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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