art.icle

POST WORLD WAR II ART
RESTITUTION AND THE CHALLENGES
OF CLAIMING WHAT'S YOURS

by Tamara Attia / Co-Edited by Alexia Georgieva
June 18, 2020
An interview with Lauren Bursey, associate attorney at Withersworldwide, New York

This interview is a personal opinion and does not reflect that of Withersworldwide

During World War II, over 600 000 paintings of Jewish artists were looted by the Nazis as an attempt to suppress the remains of all the vestiges of Jewish identity and culture. Up to this date, galleries, dealers, museums, and individuals are researching these stolen paintings. What triggered this research process, and how did it all start to take place?

Lauren: The theft of the art started as a way to remove Jewish people of their possessions. Art and culture were part of a tactic that the Nazis used, and Hitler, in particular, was very interested in art. The art that was stolen was not only taken from Jewish people, but also from very wealthy people and sometimes, they overlapped. When Jewish people wanted to leave Germany during the war, they had to hand over the art that they had. The term most often used for this is “forced sale.” We often think about the Nazis looting art pieces, and yes, in most cases, Nazis would storm apartments and take things, but it also took the form of blackmail. It was well known and not something that was hidden or just discovered in the 1990s. The art was being moved all-around continental Europe almost at the same pace as armies were moved.
They would load up big trains and ship the art from European countries back to Germany, and that is something the allies were very aware of. During the war, the allies have tried to save the artwork, but the saving process mostly happened after the war ended. The allies set up a collecting point to collect all of the artwork the Nazis had stored a bit everywhere, like in mountains and caves. Then they sent back the art to the different countries where they came from, and from this point on, they felt like it was up to those individual countries to manage to give the artworks back to their citizens. Because that obviously did not happen, the art restitution field exists.
A lot of times, governments had no interest in putting in the work required to batch the art back to its original owner. Sometimes, as it was often the case, the owners of the art were dead, so there was no one to send it back to, or at least not immediate family. Other times, art just went to national collections, so you have national museums that ended up getting these amazing collections all of a sudden. At that point, it relied upon individual claimants to go after big sponsored museums (because most of the European museums are sponsored). There was no requirement that museums go through their collections to find art that has been stolen, so nothing really happened for a while.
Of course, many people are still searching, and we can read many stories of families who looked all over the world for the arts that have been stolen from them. You also have to remember that a lot of things disappeared and when the Nazis looted a lot of art, the Russians took just as much themselves, if not more so on their way back to Russia. What the Russians did is called war booty, which is an extremely controversial opinion because the Hague convention said that there is no concept of war booty, but it still maintains that the Germans came in and stole things from them so that the art they took back on their way to Russia was rightfully theirs.

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Then, you don’t start to see any actual movement of art restitution cases until the 1990s. One of the first art restitution cases was the Portrait of Wally against the Leopold Museum in Vienna, in 1997. When that started, it really opened the watershed of art restitution cases in the U.S. The U.S is actually the forum for art restitution litigation because the rest of the world doesn’t litigate as much as the U.S does, so most of those big cases happened here.

Gigi Hadid

In this quest for lost paintings, what is the role of the art lawyer, and how can you track the provenance and chain of ownership of a particular piece? 

Lauren:  In the 1990s, the Washington Principles were created in a multinational conference. These are ten principles essentially giving countries and museums around the world the obligation to look through their collections to identify artworks that may have been stolen and to put the work in to find their provenance. This started to put the responsibility on museums a bit more. When you talk about provenance research, it's really just a fancy term to say ownership history. Some art historians feel that only art historians can do provenance research. I disagree with that. I think it can be done by both lawyers and art historians, especially when you're looking through ownership documents. So much of the provenance work is actually understanding the chain of ownership. Ideally, you would have a chain of title from the artist to the current owner, knowing exactly how it transferred from each owner all the way through. When you look at art, when you look at an auction today, most museums will list the provenance. Most are still done very poorly because a lot of the time, the information isn't available. Even in the early 2000s, the art world itself did not operate with documentation. It was more of the handshake method, and we are still fighting today because everyone has different opinions as to what extent there should be transparency in the art market. Often, you see wealthy people that don't want the public to know that they own art or what they own, which is understandable because it could be a security issue. 
The provenance research is particularly vital right now as survivors from the war become interested in getting their family's art back. A lot of times, we have to rely on a picture, perhaps, and it's never the original owner who's bringing the suit. It will be, for example, the owner's nephew who says that he remembers seeing this painting on his uncle's wall, and maybe, by chance, he has a picture that shows the painting on the wall. It's a real treasure hunt, so there is a lot of archival research that has to be done, which is also why these cases really couldn't start until the archives were open. A lot of historical context needs to be provided, so I think that as a lawyer, you need to have that historical context and that background. It's important, when you bring your case to the court, to put everything in context, especially when talking of a forced sale. The idea of a forced sale has been accepted in U.S. law now because these cases have been litigated so often, but of course, you still have to prove your case. What is interesting about these cases is that they are all so facts specific. 

Often, in the process of restitution, the burden is on families to prove an artwork was stolen or sold because of Nazi persecution. What can be the challenges in doing so, since sometimes museums housing those artworks consider the pieces as their own? Where and how do you draw the line? 

Lauren: There are lawyers working on both sides, of course. Most times, you are going to see a case of a claimant suing a museum. The museum will have its own lawyers, and so will the claimant. The claimant then has to show that they have a legal title to the painting. Often, the museum has had this painting or work of art for the last 50-60 years, and they think they own it because it’s in their collection, but under U.S law, you can’t get a title from a thief or under duress [duress: threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment]. So, if there was no proper transfer of title, it never left the ownership of the original owner. As a lawyer, if you are representing the claimant, that is what you have to prove. If you are representing the museum, you are most of the time trying to prove that the artwork that has been part of their collection for decades has never been claimed until now. There is a legal concept known as “statute of limitations” that is brought for that argument. The statute of limitations represents a period within which an injury has occurred and you have from that time to make your claim, but the starting point of the period is different depending on the state. In New York, at least, they use a discovery rule, which means that the statute doesn’t start until you discover where the painting is. The rules can be a little bit different depending on the jurisdiction. Those are less of an issue than when, for years, a claimant just sat on their hands and has not done anything when they could have brought a claim. It basically penalizes someone from sitting around. It can happen because the case mostly goes still, witnesses die, documents get destroyed, and you don’t have a strong case anymore. In 2016, the HEAR Act [Holocaust Expropriation Art Recovery] was passed by Congress, which extended the statute of limitations from 3 years to 6 years and that allows more people to bring claims. The issue of the statute of limitations has been well educated in the Court to the point where it has been recognized as an issue, and so that is again part of why the U.S. is kind of the forum to bring these claims. 
There will also be a lot of settlements where the museum will pay a significant amount of money to the owner, and they will write his name on a plaque next to the art piece. In doing so, the museum can keep and display the artwork. Frequently, museums make the argument that they are the best place for them, and in many cases, this is true because they can protect the art adequately with the right conditions, and they have massive insurance that covers their whole buildings. You will often see that once claimants get the right of the painting, they decide to sell it. They also might sell it because they are suing on behalf of their whole family, and since you can’t break art into pieces, they decide to share the profits from the sale with the family. Certainly, some argue that it is really unfair that a museum should have to give up an artwork only for the claimants not to keep the artwork and sell it right away. They say it’s a waste because no one can see the art since it is now the property of a private collector, for example. I understand the argument, but legally, it is not a fair argument because it was never the museum’s, to begin with. When you think of the chain of title, they never really owned it, so the people who do own it have a right to dispose or do what they want with it. The way today’s society works, money ends up being the thing that at least can heal some wounds.

Gigi Hadid

Another famous case, that was made into a movie, is the Woman in Gold, which was again a case against a museum in Vienna. It went the whole way to the Supreme Court. The claimant got to keep the painting, but then, in kind of a nice twist, the painting was bought by Ronald Lauder, a big art collector. His family is of Austrian background, which explains why they had an interest in that art. On 5th Avenue, there is a Townhouse that he’s basically recreated to be a Viennese Townhouse called the Neue Gallery, and you can go there to see the Woman in Gold. He has taken it upon himself to continue to show the work to the public, so that’s a nice story. Things worked out for everyone: the claimant got money, and the art is still shown to the public. 

Given these circumstances, what would you say is the most effective way to approach restitution for a client? 
Lauren: You can get very different results depending on which method you use, and I guess you have to look at what your end goal is. For some people, recognizing that they were the proper owners is more important to them than anything else, so for them, having something like a plaque beside the painting on the wall is enough. You can get that result, but whether you like it or not, that is not really the purpose of litigation. Although the cost of mediation and arbitration are going up, the expenses of it are worth considering. The speed of them is also worth considering because litigation can be very slow. Especially if you have a claimant who’s elderly and their dying wish is to be able to see their painting getting back to them, litigation is maybe not your best approach. I would say that with everything else, it is super facts specific. You have to think about what is most important to your client. It is helpful to have that understanding of the issue, which is why it is great that we have specific laws, but it can still be a challenge. In the last year, a court of arbitration was put in place. Typically, each party will choose an arbitrator (someone specialized in a specific field; some are big art lawyers, some are authenticators, etc.). Then, there would be a third arbitrator who would be chosen by those two. It’s a different way of doing things, and arbitration panels settle a lot of international disputes. However, we do not know if it’s working for art restitution because they have not heard a case yet in the U.S. We will have to see. Right now, it is a challenge because it is new, but enough people thought it was worth doing.

Picture 1 -  https://d3i6fh83elv35t.cloudfront.net/newshour/app/uploads/2016/04/hitler.jpg
Picture 2 - https://www.erskineco.com/wp-content/uploads/2019/02/looted-art-1-1024x675.jpg
Picture 3 - https://www.neuegalerie.org/sites/default/files/styles/918x482/public/paragraphs/slider/visit_landing_new.jpg?itok=1e3HKSXX



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