Grossman LLP | Trend Toward Voluntary Restitution of Allegedly Looted Artworks Continues
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  • Trend Toward Voluntary Restitution of Allegedly Looted Artworks Continues
    03/09/2017
    While we often write about high-profile litigation over Nazi-looted artworks, it’s worth noting that in recent months, there have been a number of important examples of voluntary restitution, as parties increasingly seek to resolve such disputes outside the courtroom.

    In January, a German food company, Dr. Oetker, took steps to return four artworks from its corporate art collection whose provenances had been traced to victims of the Nazi regime.  The company returned a Van Dyck portrait and a Hans Thoma painting to the heirs of the Jewish families who had owned the works before the Nazis came to power.  In the case of the Van Dyck, the work was traceable to the collection of Jacques Goudstikker, who had been a prominent art dealer in the Netherlands before he was forced to flee the country in advance of the Nazi invasion and died on the journey.  (Another one of Goudstikker’s artworks has been the focus of a long-running suit against the Norton Simon Museum in California.)  After Goudstikker’s death, his assets were sold for far less than their value, with several pieces ending up in the collection of top Nazi official Hermann Goring himself.  After the war ended, the portrait at issue passed into the hands of the Dutch state, which deaccessioned it to a dealer; that dealer sold it to the founder of Dr. Oetker in 1956, and it was transferred to the company in 1998.  As for the Thoma work, it was once the property of Jewish art collectors Albert and Hedwig Ullmann, but Hedwig was forced to sell it under duress before fleeing Germany in 1938; the Oetker family acquired it after the war.  Dr. Oetker, a privately held company, has, in recent years, voluntarily followed the Washington Conference Principles, a non-binding declaration signed by a number of countries seeking to further the return of Nazi-looted art, and has undertaken its own provenance research, including by appointing an internal auditor to identify works with problematic histories.  Reports indicate that, in addition to the Van Dyck and the Thoma, the company is in the process of returning two other works to their rightful owners.  The company’s proactive stance toward restitution of pieces from its collection has been praised as an example of “best practices” for a private collection.

    Likewise, in December, two artworks by Dutch Old Masters were returned to the heirs of their pre-war owner, German-Jewish art dealer Max Stern.  Stern sold many works of art under duress before fleeing Nazi persecution in the 1930s; he eventually settled in Canada, and on his death bequeathed most of his assets to Concordia University and McGill University in Montreal and the Hebrew University in Jerusalem.  Those institutions have for several years been making a concerted effort to track down art from his collection.  These particular restitutions were accomplished after the two works at issue surfaced at German auction houses, and came to the attention of those three beneficiaries of Stern’s estate.  Reports indicate that the unnamed consignors of the works “were unaware of the provenance” and ultimately agreed to return them after “amicable discussions.”  Interestingly, the three universities’ future efforts to track down more Stern works are being supported by an innovative program which seeks to “encourage possessors of Stern works to return them in exchange for tax certificates.”

    Also in December, the city of Berlin returned a sculpture to the heirs of Jewish newspaper publisher Rudolf Mosse, whose family had to flee Germany during the Nazi era; their property was auctioned, but they received none of the proceeds.  The restitution of this particular work apparently contemplates that the work will remain on loan to a museum in Berlin for some period of time.  Like the institutional beneficiaries of the Stern estate, the heirs of the Mosse family have created a Foundation which actively works to track down more of the lost Mosse art collection.

    And in February, the son of a Nazi official returned multiple works to Polish officials which had been looted from the city of Krakow, apparently for no compensation in return, following negotiations brokered by a Polish historian and politician.

    The phenomenon of voluntary restitution is by no means limited to the arena of Nazi-looted art.  For example, last summer, a lawsuit over a Wilfredo Lam artwork purportedly lost during the Cuban Revolution was settled out of court.  The current possessor of the work had sought a declaratory judgment in federal court in Miami that he rightfully owned the work, arguing that he had acquired it validly after the work had been donated to a monastery before the Revolution.  But the defendants, heirs of a Cuban couple who fled Cuba in 1960 after the Revolution, challenged that story, asserting that the work had been stolen from their family home in Havana after the family fled to America to escape civil unrest.  Ultimately, the parties dropped their claims against one another under a confidential settlement that allowed the current possessor to sell the work after making a payment to the family.  See Docket No. 15-CV-24716 (S.D. Fla.).

    As we have observed before, voluntary restitution of looted artworks is gaining ground as an important alternative to drawn-out, costly litigation, particularly in cases that are often plagued with complicated legal problems (ranging from jurisdiction questions to issues implicating the laws of other nations) and a lack of definitive evidence of what really happened during long-ago times of war and chaos.  Indeed, sometimes these settlements can reach creative compromises (such as negotiated arrangements for loaning artworks) that would not be possible in a winner-take-all court battle.  We have seen courts, legislators, editorial boards, public and private collectors, and other leaders in the art world speak and act in support of increased efforts to settle such disputes outside the courtroom.  These recent examples show that this trend is alive and well in the art market.
    ATTORNEY: Kate Lucas
    CATEGORIES: Nazi-looted ArtProvenance