Supreme Court Declines to Hear Two Closely Watched Art Restitution Cases

The Supreme Court today announced that it would not hear two closely watched art restitution cases -- Von Saher v. Norton Simon Museum and Cassirer v. Kingdom of Spain.

Both cases concern foreign affairs.  Von Saher put into focus the U.S. government’s power to make and resolve war, including the power to resolve war claims.  Cassirer considered whether a foreign sovereign is immune from suit.

The Supreme Court had requested the views of the Department of Justice through the Solicitor General, who recommended that the Court not hear the cases and instead let the lower court decisions stand -- a recommendation the Court agreed with.

Who Owns the Art?
 
So what does it mean?

In Von Saher, the plaintiff -- the sole heir of Dutch art dealer Jacques Goudstikker, who fled the Netherlands in 1940 -- is seeking two Lucas Cranach paintings (Adam and Eve, shown below hanging in the museum) seized by Reichsmarshall Hermann Goring.  They now hang in the Norton Simon in Pasadena and, with today's Supreme Court action, are likely to remain there.

The briefs submitted to the Supreme Court in Von Saher make one thing clear:  Holocaust restitution cases can be a lot more complicated than good versus evil, contrary to what their generally superficial treatment in the press would have you believe.  For example, it's not clear that Goustrikker was even the lawful owner of the Cranachs -- at any rate, they had been returned by the Dutch government to another claimant in 1961.

The plaintiff in Cassirer* -- whose grandmother was forced to give up the painting in 1939, when she fled Germany -- is seeking a Pissarro in the Thyssen-Bornemisza museum in Madrid (below).  Cassirer sued not just the museum but Spain as well, which owns the museum.  After today, Cassirer can continue pursuing the Pissarro.

The briefs here indicate the U.S. government's continuing interest in smoothing things over with Spain.  The State Department's interest in resolving the case diplomatically came out awhile ago in a document published by Wikileaks.  Now the Justice Department has apparently extracted a promise from Cassirer to agree to Spain's dismissal from the case.

Von Saher v. Norton Simon

The issue in Von Saher was whether the California statute the plaintiff sued under was preempted by federal law.  The statute, enacted in 2002, created a distinct cause of action, a sort of Holocaust recovery act, that extended the statute of limitations to recover Nazi-confiscated artwork from museums. 

The Norton Simon moved to dismiss on the ground that in enacting the statute California was trying to redress wrongs that occurred during World War II, which intruded on power reserved to the federal government.  The Ninth Circuit Court of Appeals agreed: “the power to legislate restitution and reparation claims is one that has been exclusively reserved to the national government by the Constitution.”  

As of today, that decision stands, but the plaintiff’s case hasn’t been thrown out of court entirely, at least not yet.  The Ninth Circuit held that her claim might be timely under state common law to recover personal property, so she’ll have an opportunity to litigate whether she brought suit within three years after she “discovered or reasonably could have discovered her claim to the Cranachs.”

That might be an uphill battle.  Van Saher (left, shown with other restituted art) claimed she only discovered the works in 2000, but they've been hanging in the Norton Simon since the 1970s.  Neither the museum nor the works are exactly obscure.

The Norton Simon has gotten a lot of flak for not just handing the paintings over, so it bears noting that some thorny factual issues remain to be sorted out – such as, fundamentally, was Goudstikker the lawful owner?

The Cranachs and other Goudstikker paintings were recovered by the U.S. armed forces, and in 1946, pursuant to a policy of external restitution, they were returned to the Netherlands as the country of origin in the expectation that the Netherlands would return them to the lawful owner.

As stated in the Solicitor General’s brief, the Netherlands returned the Cranachs to another claimant:

“In 1961, George Stroganoff-Scherbatoff, heir to the Stroganoff family, instituted a restitution proceeding in the Netherlands for the Cranachs and other paintings.  Stroganoff asserted that the paintings had been seized from his family by the Soviet Union and unlawfully auctioned to Goudstikker. In July 1966, the Dutch government transferred the Cranachs and another painting to Stroganoff in settlement of his claim and in exchange for a monetary payment.  Around 1971, Stroganoff sold the Cranachs to the Norton Simon Art Foundation.”

Plaintiff, for her part, asserts that the Cranachs were never part of the Stroganoff family collection and that Goudstikker bought them at auction legally.

Something else to consider -- isn't the judgment of the Dutch government entitled to substantial deference as a matter of international relations?

Cassirer v. Kingdom of Spain

The Cassirer case questioned what kind of claims can be brought under the federal Foreign Sovereign Immunities Act, which makes foreign governments immune from suit unless the claim comes within a statutory exception to that act.

Cassirer asserted that his claim came within the “expropriation exception.” That exception permits the court to hear a case where “rights in property taken in violation of international law are in issue.”  

Defendants agreed that the Pissarro was taken by the Nazis in violation of international law and therefore “rights in property taken in violation of international law were in issue.” 

But they argued that the claim did not come within the expropriation exception for two reasons.  First, they argued that the FSIA permits jurisdiction only over a foreign state that itself has taken the property in violation of international law, but neither Spain nor the museum had done so. Second, they argued that before bringing suit under the FSIA, Cassirer had to exhaust his judicial remedies in Germany or Spain.  

Analyzing the plain language of the statute, the Ninth Circuit Court of Appeals disagreed.

Cassirer can now proceed with his case – maybe. The Ninth Circuit indicated that the district court should consider whether, as a matter of comity between nations, it should require the plaintiff to exhaust his remedies overseas anyway, even though that is not required by the statute. 

And if the case does proceed, it may be without Spain as a defendant.  The Solicitor General informed the Supreme Court in its brief that Cassirer’s counsel “has informed this office” that Cassirer would not oppose a motion to dismiss Spain from the suit.  “The fact that Spain may not ultimately be subject to the District Court’s jurisdiction -- and in any event that other foreign states should not be subject to the jurisdiction of United States courts based on the possession of expropriated property by their agencies and instrumentalities – significantly diminishes the potential impact on foreign relations of the decision below.”

*The plaintiff died during the litigation and his estate has been substituted as plaintiff, but for simplicity I refer to Cassirer rather than his estate.

Copyright 2011 Laura Gilbert

Museo del Barrio Layoffs: More Financial Trouble at New York Museums

The financially ailing and rudderless El Museo del Barrio has laid off its press officer along with three others, is cutting vendor expenses, and is putting on fewer shows because of a financial crisis.

It confirmed the moves only today after refusing to respond to this reporter’s telephoning yesterday.

The information was presented by Susan Delvalle,  director of external affairs and development, in a conference call that included Georgina Nichols, interim museum director and director of finance and administration.

Delvalle declined to state which positions had gotten the ax beyond its communications officer, Ines Aslan,  but said that they included both full-time and part-time employees. 

The layoffs, she added, are just one of “many steps” being taken to slash costs, including a reduction in summer programming for adults, lengthening exhibition time – i.e. putting on fewer shows -- and renegotiating or not renewing vendor contracts.

She said that no further layoffs were envisioned.  The total cost reductions are reportedly in excess of $1 million.

El Museo del Barrio, which has a history of financial troubles – its funding was frozen by the city in the 1980s because of fiscal mismanagement -- has been looking for a director for more than a year to replace Julian Zugazagoitia, who announced in March 2010 that he was leaving and then decamped to the Nelson-Atkins later that year.   

Asked whether the belt-tightening would make the search for someone to take the helm any more difficult, Nichols said, “I don’t believe so,” adding that “every” museum looking for a director was facing the same problem.

One might question her confidence after a look at El Museo’s most recent tax filing, which is for its fiscal year 2010.  It shows an endowment of only $1.8 million, which isn’t going to throw off much income to use for operating expenses. 

And of its $8 million in total assets, $4 million represents promised grants and contributions – i.e. receivables, not money in hand.  Compare that to its expenses for fiscal 2010 – they were $8.3 million.

The New York Times just last week favorably reviewed the museum’s most recent show.  El Museo is still talked about for its stunning and remarkable 2005 exhibition of large-format photographs of pioneering Mexican news photographer Agustin Victor Casasola.

Copyright 2011 Laura Gilbert

Met Museum Caves to Hoax Revelations, Modifies Captions -- Slightly

One-half of one cheer for the Met for realizing that it’s egregiously wrong to dishonestly describe what’s hanging on its walls.

An earlier post discussed two deliberate fakes in the Met’s “Thinking Outside the Box” exhibit.

One was identified as an “oil on canvas” painting by Jean Marc Nattier (left) -- in which a girl holds a box -- and the other as an “engraving.”  But they’re fakes.  Loosely speaking, they’re photo reproductions.

On Monday, a Met spokeswoman stated that the labels would be changed.  A policy of honesty is better late than never.  Now the new labels are up, and each states, in parentheses and in type no larger than the descriptions of the missing originals, that each of the works is a reproduction (below, click to enlarge).

The original works, which are owned by the Met, were part of the exhibit when it opened, the Met says.  The painting was shipped off to the Getty for a show that opened there in April — even though, it should be noted, it was prominently featured, and still is, in the introductory wall text to the Met’s own show.

The engraving was taken down to minimize its exposure to light, the Met explained, and that is a longstanding policy I know about designed to protect certain artworks – though the removed works are typically replaced by other, substitute, originals.

So far, so good.  At least there are reasons these specific originals are no longer on display, though dispatching the painting flies in the face of common sense, since it was apparently thought to be an organizing work in the original exhibition.

So why weren’t both replaced with other originals from the Met’s collection?

On a few days when we both were there, a colleague who is an investigative reporter with decades of experience talked to some visitors who had stopped to look at the “Nattier.”  They told him they thought it was a painting, and while we were there, several visitors photographed the reproduction in the mistaken belief that it was the real thing.

With the fake engraving, it’s probably even more difficult for the casual visitor to distinguish the reproduction.

Why the museum is deliberately showing fakes in its galleries – this show is not the only one now running with misrepresented reproductions or undisclosed recreations, a historic change in policy — is a question the Met refuses to answer.

The “goal” of displaying the reproductions in “Thinking Outside the Box,” Met vice president Elyse Topalian told me, was to give these works a “presence” in the show.  Huh?

She would neither explain her comment nor further discuss its implications for the institution’s integrity or exhibition policy.  But carried to its logical conclusion, this type of thinking means there’s no need to persuade Russia to resume lending art to U.S. museums – it’s quite alright if works from the Hermitage have a “presence” here through reproductions.

For hypothetical consideration, shown here are a few paintings depicting boxes currently hanging in the permanent collection --  Sebastian Stoskopff's  "Still Life" (above), Gabriel Metsu's "Musical Party" (left; note the trunk at the bottom left corner), and Gaspare Traversi's "Teasing a Sleeping Girl" (bottom).  And with more than 1.5 million prints and drawings in the Met’s collection, the engraving now present as a reproduction can’t be the only appropriate work on paper for this show.

As for the slight changes the Met did make, the new labels don’t disclose that the “reproduction” of the painting is smaller than the actual work or that the proportions of the actual print are different from what’s reproduced.

One might wish the Nattier label didn’t still describe the textures represented – “luxury fabrics,” “crystal ewer,” “ormolu-mounted tortoiseshell caskets” – as “all painted with great care” when there’s no paint to look at.

It’s a new era at the Met, it would seem.

Text and photos copyright 2011 Laura Gilbert

Hot Shows for a Hot Summer: Toulouse-Lautrec and Munch, Gericault and the Romantics

Toulouse-Lautrec, "Seated Clowness," 1896

What we need — beyond world peace, prosperity, and lying museums that raise their admission prices first, then figure out they need to “cry poor” second — are free summer shows.  A couple of galleries with the resources to put on world-class exhibits have come to the rescue — Tunick and Feigen.  They’re ages old, and specialize in art of the last five centuries or so.

For drawings and prints, get yourself over to Tunick, where its current exhibition, “La Femme,” presents the woman in various roles — as aware of her own sexuality in Klimt, as almost defeated by life in Toulouse-Lautrec, as a domestic worker in Delacroix and Millet.

But really it’s an opportunity to see outstanding art by outstanding artists, better appreciated by looking at each piece individually rather than as part of a theme.

Picasso is represented by one of his most famous etchings, “Frugal Meal” (left) — the couple against the world from his Blue Period — in addition to “Satyr Unveiling a Nude Woman” from the 1936 Vollard Suite.  The latter is a recurrent and always moving theme in Picasso’s work, woman as an unattainable object of desire.

Munch — that master of misery, sickness, and death — has two works as well.  “Sick Child” (below) he considered his greatest print.  It’s a lithograph of his 15-year-old sister on her deathbed, a tender profile resting on a pillow amid a tangle of black angry lines.  “Moonlight” is a woodcut, cool, dark, abstractly beautiful.

Munch reworked each of these prints many times — “Sick Child” was something of an obsession, and he painted several versions the theme as well — changing color, lines, texture, or detail.

The Toulouse-Lautrec lithograph, “Seated Clowness” (top) is a beauty.  It has everything that makes this artist appealing — bold pattern, bright colors, the underbelly of amusement in everyday life.

There are also four large Klimt drawings, a couple of which haven’t been seen for almost 100 years, an extremely rare Maurice Prendergast monotype, a couple of Whistlers, and a red chalk drawing by Watteau.

If you the appetite for a taste of Rembrandt — and who doesn’t — check out the five Rembrandt etchings in the Tunick library, the great “Three Crosses” among them.  They’re not part of the special exhibit, and they’re a hearty meal in themselves.

“The Romantic Revolution” at Feigen, just three blocks away, is fun and quirky.  It presents at once both the challenges of  art in the decades before Impressionism — sometimes-difficult subject matter, a plethora of styles that seem to go nowhere — and the delights of discovery.

Works by Courbet and Constable are here, and three small studies by Gericault that are magnificent examples of how colorful, and emotionally intense, he could make the many shades of brown.

Shown below is  his “Abandoned Cart," a bleak industrial landscape in condensed form — it’s only about 6 by 10 inches — that is thought to be a study for a painting in the Louvre.

Much of the art is by painters who are less well known, though they definitely have a place in art history.  Chief among these is Henry Fuseli, a Swiss artist forced into exile for political reasons, who was an early explorer of the dark side of Romanticism.

His “Fairy Mab”(below) is one of 47 paintings based on John Milton’s life and works.  Fuseli exhibited them in London in 1799 as a “Milton Gallery.”

Back then, the show was a commercial failure, but it’s been an obvious artistic success.  The Met, in fact, has another work in this series — which it previously bought from Feigen.

“Mab,” from one of Milton’s poems, is the queen of the fairies who roamed pantries at night looking for a sweet pudding called junket — the predecessor of bankers who rummage around looking for tax dollars to swipe.

The crooked financiers are better at it than Mab was, presented here digging in, an almost demented child with a sugar high.

The Romantic landscape is represented at the show by a ho-hum Constable, a somewhat better Samuel Palmer, and several truly beautiful paintings by Richard Wilson ("Hounslow Heath" is below), who is considered the father of English landscape painting and an acknowledged influence on Constable and Turner.

There is much to see — a rare sculpture by Courbet, a woman’s head titled “Liberty” that was shipped in a box addressed to the wonderfully named Baron de Bastard, also on display; a couple of works by Ary Scheffer, a journeyman artist who on occasion painted with something approaching inspiration, and drawings by Girodet, including at least one that was lent to the Met’s retrospective a few years ago.

Well-researched and well-written handouts are available for each piece — wait, this is a Feigen show, not a Gagosian garage production that makes you guess what you’re looking at.

Your correspondent intended to review another show, at a gallery that shall be nameless.  But the big-name works, which were new to me, couldn’t be found in online images, and the gallery boss forbade my own photography and refused to provide me any of his.  The reason, he said, was that the sellers were “paranoid” about the art being seen on the internet.

The first thing that went through my mind was that the show could include forgeries or stolen art.  Never mind.  Instead of writing a review,  I notified a stolen-art registry.  Hot art for a hot summer?  We’re barely in June.

“La Femme,” David Tunick, 11 East 66th St., through July 1; “The Romantic Revolution,” Richard L. Feigen, 34 East 69th St., through August 1

Photos:  Courtesy David Tunick, Inc., and Richard L. Feigen & Co.

Copyright 2011 Laura Gilbert

Latest Met Hoax: Reproduction Mounted on Plastic Board Displayed as an Old Master "Oil on Canvas" Painting

It takes grapefruits the size of Bernie Madoff to try to pull off a hoax of this magnitude, but the Metropolitan Museum, as it has previously, is again deceiving the public.

As part of a special exhibition, it's presenting at least two pieces of flimflammery.

One, crammed in with two decorated boxes in a wall/table display, is identified as "Madame Marsollier and Her Daughter" by the 18th-century French artist Jean Marc Nattier (top).  It's labeled "oil on canvas" with the date 1749 (below left, click to enlarge).  

The other, on the wall opposite, is identified as "Costume of a Luggage Maker" after Nicholas de Larmessin, a French printmaker who did a series depicting costumes of various professions.  It's labeled "engraving" with the date c. 1690 (below right, click to enlarge).

But certainly the garbage the Met has on view is neither oil painting nor engraving.

Instead, they are photographic reproductions.  The reproduction of the Nattier is mounted on what appears to be foam core, a lightweight plastic backing.  (Note, at the bottom of this post, the torn lower left corner of the foam core, whose date I would guess is 2010 or 2011.)

The purported engraving appears to be some sort of cardboard no thicker than the label.

The Met, by the way, owns the originals of both. 

This isn't the first time the Met has been caught putting one over on its visitors this year.  Some of the Richard Serra drawings it's currently showing are not the originals but are instead recreations, a fact nowhere disclosed in the exhibition itself.

And about the Jeff Koon-loaned Christ that the label says is a painting by Quinten Massys, is it really a workshop production?  The Met refused to respond to repeated inquiries, but it has never denied it either.

The trickery here didn't require any ferreting out.  It's as plain as the nose on Met director Thomas Campbell's face.  Is this the kind of hubris that led the Getty to forge signatures, tax appraisals, and provenances in its decades-long antiquities scandal, as recently reported in the book "Chasing Aphrodite"?

Fitting, isn't it, that the Nattier oil on canvas is now a highlight of the "Paris: Life and Luxury" show -- at the Getty.  But where's the original engraving?

The name of the exhibition that includes the photographic reproduction is "Thinking Outside the Box."  Indeed.

Campbell's office refused to comment and referred all questions to the Met vice president of communications.  She hasn't called back in days.

June 13 Update:  Today, seven days after my initial inquiry, Met vice president for communications Elyse Topalian informed me that the two reproductions discussed here will "certainly be getting new labels" and that the new labels are now "on order." 

  Text and photos copyright 2011 Laura Gilbert