U.S. museums and Looted art—is it whether you win or how you play?

Art Law Report 9 July 2015
By Nicholas O'Donnell

USA: A recent report by the World Jewish Restitution Organization (WJRO) has made strong criticisms of American museums with respect to their handling of Nazi-looted art claims.  In particular, the report criticizes the assertion of timeliness defenses such as statutes of limitations.  The report focuses in particular on cases involving the Museum of Fine Arts, Boston, the Norton Simon Museum in Pasadena, the Toledo Museum of Art, and the Fred Jones, Jr. Museum at the University of Oklahoma.  There is no state control over the vast proportion of art in America the way there is in most European countries, and thus, no possibility of singular, nationalized approaches.  In response to the report, some of the museums mentioned have defended their strategies, though in some cases the players are talking past each other.  What is undeniable is that whether as a function of the nature of U.S. museums (largely private, rather than public), it is hard to say there is a coordinated approach to the issue, good or bad.  The report is lengthy and detailed, and well worth a read in depth that space here does not permit.  In some ways, the question it poses boils down to this: is determining the historical truth the obligation of everyone involved or is there some room to prevail without addressing the larger issues?

The Guiding Principles

The report surveys several litigations in recent years in the context of the Washington Principles on Nazi-Confiscated Art from the eponymous 1998 conference, and the 1999 guidelines promulgated by the American Alliance of Museums (AAM, formerly the American Association of Museums).  This is a sensible framework, because that era—now 15 years go and quickly receding—set the stage for much of the status quo today.

The Washington Conference on Holocaust Era Assets resulted in the principles to which more than 40 nations committed, and urged the identification of Nazi-stolen art, and the commitment of resources to researching and restituting them.  The oft-cited Principles are not a treaty, however, and they are not typically the law of the participating countries (including and in particular the United States).  But they certainly established an aspirational standard, and the museum community was soon behind.  The Association of Art Museum Directors (AAMD) also published in 1998 the Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945).  Interestingly, the WJRO report makes only passing reference to the AAMD response, focusing more on the AAM’s (this may be because the AAM governs the overwhelming majority of American museums, while the AAMD covers a subset of art museums’ directors).

But the AAMD was the first of the two organizations to respond with a Task Force Report, and in hindsight the response has aged very well from an analytical standpoint.  It urged member museums to research their existing collections (something I was myself charged with doing at the museum where I worked at the time), and consider further acquisitions and gifts carefully under a higher standards of provenance.  It advised the following:

  1. If a member museum should determine that a work of art in its collection  was illegally confiscated during the Nazi/World War II era and not restituted, the museum should make such information public.
  2. In the event that a legitimate claimant comes forward, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.
  3. In the event that no legitimate claimant comes forward, the museum should acknowledge the history of the work of art on labels and publications referring to such a work.

This puts the onus on the museum, no two ways about it.  It encourages the museums to take the initiative, find out potentially uncomfortable information, and do the right thing.  My own view remains that these observations are perhaps the best example of what doing the right thing means, and in that respect they were prescient for their time.  In the execution, however, not everyone is happy.

The Litigations

I view the litigations cited by the report fall as consisting of two important categories, though the report is not organized in this way.  The first category is where the parties do not dispute that the art in question was, at one point, looted by the Nazis.  The ongoing claims by the Cassirer family against the Thyssen-Thyssen Bornemisza Collection for Rue St. Honoré, après-midi, êffet de pluie by Camille Pissarro, and Léone Meyer’s claims for La Bérgère (also by Pissarro) at the Fred Jones, Jr. Museum discussed in the report fall into this category.  At the end of the day, this presents the museum with an unavoidable question: does it want to fight to keep something that was taken as a result of persecution?  In many cases, as we have seen, it may be able to do so.  Should it?  The WJRO report suggests the question is not a difficult one, those museums clearly disagree.

The other category is where the parties very much disagree over whether the art in question was looted or not.  The claim against the MFA for Two Nudes by Oskar Kokoschka, and against the Toledo Museum of Art over Paul Gaugin’s Street Scene in Tahiti fall into the latter.  Here, the decision point for the museum is much, much harder.  What does it know about the history?  How clear is the case for persecution?  What if it’s a toss up?  Is winning justified no matter the manner in which it is achieved?

The basic point of the report is this: the Washington Principles and industry ethics encourage resolution of any disputes in a fair way and on the merits.  A win on statute of limitations grounds—in either of the above categories—avoids an answer to that question.

In the end, much of the takeaway depends on one’s starting point.  The following statements are both true: 1) no American museum has ever persuaded a court that a contested work of art was not looted; 2) no claimant has ever won a contested judgment against an American museum over a potentially looted work of art.  The recent Cassirer result (which, to be clear, is on appeal) is, in fact, a rare substantive decision on the merits about ownership—even though the painting was looted—just under Spanish law, not U.S. law.  The MFA’s decision to sue for title to the Kokoschka, by contrast, shortcut a lengthy battle over a work that the museum was convinced had been sold voluntarily, but the outcome was not a ruling on whether the painting had been sold under duress.

What all this highlights is that in the United States, the lack of (and perhaps the inability to have) an overarching ministry or approach means that timeliness defenses remain the path of least resistance for museums that want to keep their art—whatever their individual motivations(which I’m not suggesting here should be impugned).  Some museums (the MFA in particular) have invested considerable resources in making a more transparent provenance research process, and its recent track record on pursuing answers to historical questions is exemplary (and had resulted in many restitutions without litigation).  That transparency is essential, because without it, the claimants are left with “we’ve looked into it and we’re right,” which not many people are going to accept.

And when the parties cannot agree?  Litigation will continue to fill the vacuum without a larger approach.  Is that possible?  The WJRO clearly thinks that the AAM (or someone else) should fill that role.
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