Congress Moves to Pass New Law Protecting Foreign Art Lenders from Lawsuits

Congress is moving swiftly and quietly to give American museums something they've sought for years -- a law granting foreign governments near total immunity from lawsuits when they loan pre-approved artworks to the institutions.

The proposed law has already been passed by the House and is now under review by the Senator Judiciary Committee.

The action apparently stems from deep unhappiness with a seven-year-old federal court decision in a case brought against the City of Amsterdam by the heirs of Kazimir Malevich, who were seeking to recover some of the artist's paintings.  The museum community and now Congress contend that the court's ruling, which opened up foreign art lenders to suits for damages, has chilled loans from some foreign governments because they fear being hauled into court.

Some experts, though, suggest that the new legislation was motivated, at least in part, by pressure to mollify Russia, which has instigated an embargo on loaning art to U.S. museums because of an unrelated lawsuit brought by the Jewish sect Chabad.  That embargo is now in its second year.

Read more in my article in the New York Observer, here.

I apologize for blogging so lightly of late -- I have had some writing gigs for publications both here and in Europe.  Check back soon for some posts already in the works.

Photo of Capitol Building from Wikipedia.
Text (c) 2012 Laura Gilbert.

Italy Caves on Restitution, Defaults After U.S. Seizes Painting in Florida

"Christ Bearing the Cross Dragged by a Rascal" by Girolamo de' Romano ("Romanino")

A federal court in Florida last week cleared the way for the heirs of a Jewish art collector to take possession of a painting that, according to the U.S. government’s complaint, had been illegally seized and auctioned by French Vichy authorities in concert with Nazi occupiers in 1941.

The painting, “Christ Bearing the Cross Dragged by a Rascal” by 16^th-century artist Girolamo de’ Romano, was in the United States as part of a 50-painting loan from Milan’s Pinacoteca di Brera to the Mary Brogan Museum of Art and Science in Tallahassee, Florida. 

Painting Seized at 11th Hour

On November 4, 2011, a mere two days before the painting was scheduled to return to Milan, the U.S. Attorney’s Office began the federal court action.  That same day, the painting was seized by U.S. Customs and Homeland Security officials amid a blast of media coverage.

Neither the Brera nor the Italian government, which owns the Brera, answered the U.S. government’s complaint, and on January 3 the court entered a default judgment against them.

According to papers filed with the court, the art collector, Federico Gentili di Giuseppe, had amassed a collection of more than 70 works, some of which his heirs have been attempting to recover.  In 1999, a French court ordered the Louvre to return five paintings, and the Boston Museum of Fine Arts, the Art Institute of Chicago, and the Princeton University Art Museum have settled with the heirs, the papers say. 

Schiele's "Portrait of Wally"

The last high-profile painting that was seized by the government off the walls of a museum – first by New York State and then by the Feds -- was Egon Schiele’s “Portrait of Wally,” which was on loan to MoMA from the Leopold Museum in Vienna.  It took 10 years to settle that case.

Seizure was permissible in both instances because MoMA and the Brogan failed to get U.S. State Department certification granting these works immunity from seizure.

The Italian government and the heirs of Gentili di Giuseppe had been in negotiations for some time before the show that included “Christ Bearing the Cross” was due to close, and in July the U.S. Attorney requested the Brogan to keep the painting beyond the show’s end date, until the ownership dispute was resolved.

Reporting on the dispute in October, the New York Times stated that Chucha Barber, the Brogan’s chief executive, hoped that the publicity might bring the museum much needed donors.

No such luck.  The museum will shutter its doors indefinitely on January 15 while it figures out how to become financially viable, according to the Tallahassee Democrat. 

Princeton settled the heirs' claim to Pintoricchio's St. Bartholomew

Images: Top, Wikipedia; bottom, Princeton University Art Museum website

Text Copyright 2012 Laura Gilbert 

Restitution Follies: 217 Years On, Belgium Claims a Rubens Seized by Napoleon, Days After France Recaptures a Painting “Stolen” in 1818

The latest player seeking restitution of art seized in long-ago wars is Belgium.  It wants France to return a painting by Peter Paul Rubens that was part of Napoleon’s vast art plunder. 

Rubens, "The Triumph of Judas Maccabee"

The painting, “The Triumph of Judas Maccabee,” was seized in the revolutionary wars in 1794, taken to Paris, and in 1804 sent to the Museum of Fine Arts in Nantes, when Napoleon distributed spoils of war to various provincial museums.  On Wednesday, the Parliament of the Federation of Wallonia-Brussels unanimously passed a resolution calling on the Culture Minister to “undertake all useful steps” to negotiate with France for its restitution.

“The Triumph of Judas Maccabee” is half of a diptych commissioned from Rubens by the Cathedral of Tournai in the 1630s.  Napoleon also stole the other half, but it made its way back to the cathedral in 1818.  Belgium wants to reunite the two parts in their original setting.

The prime proponent of the resolution, Senator Richard Miller, stressed that Belgium is only asking for the restitution of this one painting – at least for now -- and not the thousands of artworks that were taken during the Napoleonic wars.  "It would be foolish to think we could get everything back at once," he told the Agence France Presse.  "Still, we could try to get them back one item at a time, each case based on cast-iron arguments."

The "Black Africa" Issue

Miller seems aware that Belgium’s demand on France could come back to bite it, but in  his statement to Parliament, which is reprinted on his website, he nevertheless said it was not a matter of “our Museum Terveuren running the risk of having to return all that belonged to Black Africa.”

The Museum Terveuren is the Royal Museum for Central Africa, which was started, its website explains, in the late 19^th century when King “Leopold II fulfilled his dream:  he obtained a colony for Belgium.”  And obtained, apparently, untold numbers of artworks and artifacts besides.

Tournier, "Christ Carrying the Cross"

Chances of France giving up an altar-sized Rubens that is in a public museum?

Not good, if you consider that France itself had earlier in the week seized a painting by Nicolas Tournier, “Christ Carrying the Cross,” being shown by English gallery owner Mark Weiss at a Paris art fair.


It’s generally understood that Weiss at all times acted in good faith and without knowledge that he owned a painting that had vanished into thin air a couple of centuries before.  The Augustins Museum’s chief curator -- who had organized a Tournier retrospective in 2001 -- had himself not recognized it even though he had seen photographs of the work before its display in Paris.
 
“Although it sounds incredible, I saw no connection to the museum painting. It was not until much later, after Weiss purchased it, following several messages from some of my colleagues, that I understood that this was the canvas that had disappeared from the museum after 1818,” he told La Tribune de l’Art.

"Inalienable" Art

Nevertheless, France claimed ownership.  "This was the property of the French state that was deposited at the Augustins Museum in Toulouse and was stolen in 1818. It is a non-transferable work," the French Culture Ministry said.

“Works in French public collections are inalienable and imprescriptible . . . This means that an object which enters a museum cannot be taken away, in any way, forever in time,” La Tribune de l’Art explained, writing about the Tournier.

Presumably, the same principle would apply to the Rubens in the museum in Nantes.

For her part, Blandine Chavanne, director of the Nantes museum, said, “Be aware that UNESCO has made a decision in saying that all the works in museums acquired before 1970 were considered property of the museums,” the AFP reported.

The museum has regularly loaned out the Rubens, including in to the cathedral at Tournai, a policy it may want to revisit.

Images: Rubens taken from Musee des Beaux Arts, Nantes, website; Tournier pulled from the internet.

Text Copyright Laura Gilbert 2011

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