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Interview with Lawrence Kaye and Howard Spiegler about the State of Cultural Reparations Law

November 21, 2023

photo of two men standing and looking at art on the walls

EDUCATION

St. John’s University School of Law (J.D., 1970)
Editor in Chief, St. John’s Law Review
University of North Carolina

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Website

About Lawrence M. Kaye

In his long and illustrious career, Larry Kaye has represented foreign governments, victims of the Holocaust, families of renowned artists, and other claimants in recovering art and antiques. His career began as a legal intern in 1969, when he worked on the landmark case of the Federal Republic of Germany v. Elicofon, which resulted in two Albrecht Durer masterpieces stolen during World War II being returned to the Weimar Museum. He has represented the Republic of Turkey in recovering the Lydian Hoard antiquities from the Metropolitan Museum of Art and other repatriation cases.

KEY CASES

EDUCATION

Columbia Law School (J.D., 1974)
University of Pennsylvania (1969)

PUBLICATIONS

Recovering Nazi-Looted Art: Report from the Front Lines at Symposium: Ownership and Protection of Heritage: Cultural Property Rights for the 21st Century
Surviving War and Peace: The Long Road to Recovering the Malevich Painting
Introduction and Overview of Nazi-Looted Cases
What the Lady Has Wrought: The Ramifications of the Portrait of Wally Case
Nout van Woudenberg, State Immunity and Cultural Objects on Loan

Website

About Howard N. Spiegler

Spiegler is a pioneer of antiquity and Nazi-looted art recovery. He began his career with Lawrence Kaye at Botein Hays Sklar & Herzberg in the 1970’s. Right after graduating from Columbia Law School, Spiegler worked on the landmark case, Federal Republic of Germany v. Elicofon. He has worked on several of the important litigations brought on behalf of foreign governments and Holocaust victims. He resolved a long-standing legal dispute on behalf of the Estate of Lea Bondi Jaray and played an important role in helping the heir of Jacques Goudstikker, a renowned Jewish art dealer, reclaim 200 Nazi-looted artworks from the Dutch Government. He also contributed to recovering valuable antiquities for the Republic of Turkey.

KEY CASES

Interview

Below is the edited dialogue with Lawrence Kaye and Howard Spiegler prepared by Lily Elkwood.

In previous interviews, both of you mentioned your initial lack of interest in specializing in art, with Mr. Spiegler expressing surprise that he ended up being an art lawyer. Can you share where your interest in art began and elaborate on how you ended up specializing in the field despite your initial reservations?

L.K.: I had a general interest in the arts but no training, education, or particular expertise. At the time we started practicing, there was no art law. If you put the term in the Martindale-Hubbell directory, no names would appear. It was a new field. I started working as a summer associate after my second year of Law School. The first case I was assigned involved the recovery of two Durer paintings stolen after the war by a serviceman, who then sold them to a lawyer in Brooklyn. The lawyer hung them on his wall for many years without knowing what they were. Years later, an expert recognized them in his house; They did a spread in Life magazine, and were immediately sued by the Federal Republic of Germany and by an East German duchess, who said they were part of her family’s collection. We represented the Weimar Art Museum, which also sued to reclaim the works. It was a complicated case. Initially, the court ruled the museum was an instrumentality of East Germany, which was not recognized by the United States and thus could not sue in an American court. That was reversed when East Germany was recognized by the U.S., and the case lasted almost 15 years.

H.S.: It was not necessarily a lack of interest. It was only when I started working with Larry after graduation that I started learning a lot about art in connection with my work. When I first joined the firm, I was told to work with Larry and Harry Rand, who turned out to be important mentors to both of us, and was given a list of research questions. This was the beginning of a very strenuous process of learning. I needed to prepare to work on the first case of a foreign country suing in the United States to recover cultural property.

Given your experiences, how would you define art law?

L.K.: Art law is a body of law that has evolved to govern the creation, use and disposition of all kinds of art. It runs the gambit from litigation, including restitution cases and complex commercial litigation matters, to transactional work, helping clients buy, sell, borrow, lend and consign works, advising galleries and collectors, and navigating a variety of complex commercial matters. It branches out into related fields: copyright and even criminal law.

H.S.: It’s very expansive and has gotten more expansive even in the restitution area alone. We represented foreign sovereigns, which branched out of the Durer case. We represent the heirs of victims of the Holocaust, whose art was looted by the Nazis. Art law encompasses many different cases and many different issues.

After years of recovering art, Mr. Spiegler, once unfamiliar with art law, has ventured into collecting. Mr. Spiegler, you, and your wife acquire masks and fans during your travels. How has your perception of art changed after spending decades returning it, and how does this newfound involvement in collecting art influence your perspective?

H.S.: It’s just an interest in collecting various pieces. I don’t know if involvement in art law influenced that degree of interest. Art has enhanced our enjoyment of the practice. After all, most matters involve some of the greatest achievements of humankind. It’s hard to get lost in the nitty-gritty without appreciating the beauty of the artwork we deal with on a daily basis.

L.K.: Yes, we would say working with art has influenced how we see it. Working with all kinds of experts in the field changes your view of art. We have worked with everyone from artists to provenance researchers. Whether in museums or at auctions, we are more astute, and our understanding has deepened. When we go to museums to recover art, we use black light, altering how we look at a picture. Representing artists and maintaining relationships with them and galleries has broadened our perspective. No matter how much of a philistine I was, we now have a greater appreciation of art, from Old Masters to Modern and Contemporary artists. For instance, representing the Malevich family in recovering works by their famous ancestors gave me insights into modern art that I would not otherwise have had.

What are the bulk of the cases you deal with in art law?

L.K.: For a small firm, we work on a lot of restitution cases. It is a staple of what we do. We help clients recover property that was wrongfully taken from them. These can be very complex cases that go on for 10 to 15 years.

A large amount of your practice has been dedicated to the restitution of Nazi-looted art. What do these cases entail?

H.S.: These cases entail a remarkable array of issues. Depending on the case, we may need to analyze an issue of foreign sovereign immunity or what are known as garden variety conversion cases, where we are simply trying to recover property that our client and predecessors owned, but the emotions involved in representing these clients who are trying to reclaim their property and, in some small way, correct the wrongs inflicted on their family during the Nazi era color how cases may be resolved. It influences the everyday workings of clients’ reclaiming a part of their legacy.

Patty Gerstenblith, a professor at the DePaul University College of Law specializing in cultural heritage law, said, “[your] work has been very significant in having U.S. courts recognize the unique value of cultural objects.” What was your method of making the U.S. court recognize the value of cultural objects?

L.K.: Early on, the courts were unfamiliar with these issues. The importance of these objects comes to light in many cases. Although, the key issue is not the item’s importance. The primary concern is the legal right to the work, whether it involves treaties, conventions, or basic property rights. Art is involved, and that makes it fascinating, but fundamentally, it is a property case. Dealing with experts in valuation and provenance, the courts become educated regarding the art. We don’t have specialized judges, but to various degrees, judges become very involved with the case and appreciate the art involved,

H.S.: When we first started dealing with antiquities looted from art-rich countries, the basis for these claims were statutes adopted by these foreign countries. These statutes provided that anything found in or under the ground within the borders of a nation belonged to their nation. When we went against museums, the institutions would argue that they don’t have to follow these foreign laws in the United States. Judges began to understand that these statutes provided for ownership in these countries. It was a significant development for these defendants like museums to recognize this. The importance of this cultural property to the countries where it was originally located became prominent. It was not just property; it was cultural history.

Both of you have been involved in the movement to establish a committee in the U.S. that supports claimants replicating the European system. How do you see cultural reparation law evolving in the U.S.?

L.K.: The commissions exist in Europe because the museums are state-owned. We both attended numerous meetings at the State Department to explore the possibility of establishing a commission in the United States. The meetings were attended by representatives of the United States, the claimants themselves, and individuals from every aspect of the profession. The State Department was very helpful. However, it was unsuccessful in the end, because in the United States, most museums are private and did not want to give up their right to go to court. Therefore, creating a commission to handle disputes proved very difficult, and the initiative fell apart.

Mr. Spiegler mentioned that your expertise lies notably in understanding the statute of limitations, especially in cases where decades have passed since the original theft. Could you elaborate on the research process involved in these cases, given the considerable time gap between the events and the legal pursuit? How do you navigate the complexities of investigating historical thefts that resurface years later?

L.K.: In the US limitation periods vary from one state to another, which complicates matters. In New York, where there is a good faith purchaser, the statute of limitations only accrues once a demand for return is made and refused. In many other states, there is a discovery rule, and courts will often rely more on laches, which is a delay to the prejudice of the defendant when the action is otherwise timely. This is a very gray area. Decisions are subjective regarding what the court feels should have been done by the plaintiff and to what degree the defendant was prejudiced by the delay. And now there is also the HEAR Act, which has imposed a uniform federal statute of limitations that applies to Holocaust cases

H.S.: If we had a few weeks, I could scratch the surface of all the rules and other issues that pertain to the statute of limitations. The critical aspect in these situations is not the length of these limitations periods but rather when they begin to run. One important development in this area is that Congress passed a federal statute of limitations, overriding the various states statutes of limitations, making litigation more predictable and owner-friendly. The claim only begins to run under this statute when the original owner finds out about its claim and has enough information to conclude that there is a basis to bring a lawsuit. In virtually every case, the statute of limitations and other doctrines dealing with the passage of time is an important issue. It is usually a major defense put forth by the defendants and is something we spend a lot of time on. We worked with the State Department on the possibility of establishing a commission to resolve Nazi-looted art cases, but those efforts were unsuccessful. gmailInstead of spending time on this, we encouraged efforts to figure out a way to make the statute of limitations more owner-friendly.

In 2021, you together founded Kaye Spiegler under Herricks Feinstein. How have the types of cases you handle evolved or changed since this transition?

L.K.: We are still associated with Herrick and work closely with them. At the same time, we have our own entity, which enables us to take on more risk and have more input. The work itself has stayed the same; but there is a greater focus on art law than there was in the larger firm.

H.S.: When we decide whether to take on a case, especially when it involves a contingency fee arrangement, we make that decision among ourselves. We make the decision internally as opposed to convincing our former partners to take on the risk. This is beneficial to our clients in the area.

How have restitution cases involving art looted during the Nazi regime evolved since the beginning of your career, considering it has been a continuing specialty for both of you?

L.K.: When we started, we didn’t know much about it. As time went on, we learned a lot about how to handle these cases, the history involved, and the kinds of cases we should take, as they are not all meritorious. We gained insights into how art was taken during the war and how it was expropriated and sold under duress. As Howard says, we were instrumental in developing the Hear Act, which changed the statute of limitations, and we have been generally in developing the applicable legal principles.

H.S.: It’s very interesting to see how the interest in these cases have grown over the years. You only need to pick up a newspaper to see some article about the return of looted artworks or claims being asserted to recover them.

What advice would you offer to individuals aspiring to enter the field of art law, especially considering its unique challenges, such as dealing with different personalities and families affected by events like the Holocaust? Colleagues have praised your approach as a benchmark for young attorneys in this field. How can aspiring lawyers navigate these complexities and succeed in the art world?

L.K.: Obviously, you should consider taking an art law course, but learning how to be a good lawyer is crucial. Howard and I have been invited to give lectures and participate in panels at law schools, which has been very gratifying for us and gives us the opportunity to provide some guidance for budding art lawyers. Often, we will be giving a lecture at a bar event, and someone will come up and say “I became an art lawyer because of you.” That is also gratifying. People who have worked for us have become professors and even senior officers of auction houses.

H.S.: When students express their desire to be an art lawyer, it’s heartening and I certainly understand that interest in general. Many students already know a lot about it, but it’s also just a potentially exciting area for many. The best advice I could give these students is to go to the best law school you can get into, study hard, and find creative ways to excel as a lawyer. That constitutes 95% of the effort in becoming a good art lawyer. In addition, involvement with law school art law societies, and art law journals is very helpful.

As legal representatives for Turkey, how do political conflicts involving the country impact your work with other nations you represent? How do you navigate these geopolitical challenges and maintain relationships with your diverse clientele amid political tensions?

L.K.: In terms of politics, we steer clear of such matters, and focus solely on the legal issues involved.

H.S.: We are just lawyers; we don’t pride ourselves on being diplomats and are not in a position to solve political turmoil.

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