Nazi-Looted Art: Cranach Paintings to Remain at Norton Simon Museum

Lucas Cranach the Elder’s Adam[1] and Eve[2] have hung in the Norton Simon Museum at Pasadena for nearly 50 years. Since 2007, though, they have been the subject of a dispute between the museum and Marei von Saher. Von Saher is the daughter-in-law and surviving heir of Jacques Goudstikker, a Jewish art dealer who fled the Nazi-occupied Netherlands with his family in 1940. Goudstikker’s gallery and the family’s other assets were then acquired by members of Nazi leadership through a series of forced sales, with the gallery and the family’s residence being purchased by Alois Meidl, and more than 800 of the Goudstikker paintings – including Adam and Eve – being acquired by Hermann Goering.

The story of the Nazi seizure of artworks from public and private art collections in Europe has by now become a commonplace of popular culture.[3] Scholars have noted that “as many works of art were displaced, transported, and stolen as during the entire Thirty Years War or all the Napoleonic Wars.”^[4] It has been estimated that “[o]ne-third of all of the art in private hands had been pillaged by the Nazis.”^[5] Nazi looting of art took a number of forms: direct confiscation (seized by government officials and agents); “abandoned” objects (seized after being left behind as their owners fled persecution);^[6] forced sales;^[7] and what are sometimes called “fluchtgut” or “fluchtkunst”^[8] (“flight goods” or “flight art,” which are cultural objects sold, generally at a steep discount, by owners desperate to finance their escape from Nazi-occupied or threatened areas). For background on Nazi-looted art, see my previous discussions here and here.

That the Cranach panels were looted by the Nazis is not disputed. Rather, the question for the court was whether the post-war restitution processes properly vested ownership of the paintings in the Dutch government such that its 1966 sale of those paintings to George Stroganoff-Sherbatoff (Stroganoff) (from whom the museum purchased them in 1971) was a valid governmental action, and so is not reviewable by U.S. courts. With a decision issued by the Court of Appeals for the 9th Circuit on July 30, the case may have reached its conclusion.[9]

In 1931 in Berlin, Goudstikker purchased the panels from the Soviet Union at an auction of objects the Soviets had seized from the Stroganoff family (and others).[10] Although the district court, in its 2016 decision, [11] had found that the Stroganoff family never owned the panels, Stroganoff ownership of the panels is unclear from the evidence presented. The question of Stroganoff ownership of the panels was ultimately not germane to the 9th Circuit’s decision. The panels were recovered by U.S. forces at the end of the war and returned to the Dutch government. Rather, the issue was whether the Dutch government had good title to the panels at the time it sold them to Stroganoff.

When the war was over, and the panels were recovered by U.S. forces., it was U.S. policy to return recovered Nazi-looted objects to the governments of the countries from which they had been taken, for ultimate restitution or other disposition.

The 9th Circuit’s analysis focuses on three aspects of Dutch law relating to Nazi agreements and confiscated property: (1) a wartime law nullifying Nazi agreements; (2) the post-war restitution regime; and (3) a post-war law forfeiting to the Dutch government property owned by enemies during the war.

During the war, the Dutch government (then in exile) enacted a law that nullified wartime agreements with the Nazis. After the war, however, that automatic nullification was revoked. The Dutch government instead put in place a formal restitution and restoration of rights process.[12] Claimants had until 1951 to file a petition for restoration of rights, after which the presiding council “could still order restoration of rights of its own accord, but claimants were no longer entitled to demand restitution.”[13] Finally, to compensate the Netherlands for its losses during the war, the government also enacted Royal Decree E133, which forfeited to the Dutch government all property “belonging to an enemy state or to an enemy national.”[14] Under Royal Decree E133, the paintings owned by Goering were forfeited to the Dutch government.

Goudstikker’s widow, Desi, returned to the Netherlands after the war and took on leadership of the firm. She petitioned for restoration of rights for the assets that had been purchased by Meidl, but, on advice, she decided not to petition for return of the paintings purchased by Goering.

In 1961, however, Stroganoff filed a claim for restitution of a number of artworks then owned by the Dutch government, including the Cranach panels, arguing that they had been expropriated from his family by the Soviet Union. The Dutch government and Stroganoff reached an agreement whereby Stroganoff relinquished his claim to certain of the works, and the government agreed to sell him several pieces, including the Cranach panels.

In the 1990s, von Saher filed a petition with the Dutch government for restitution of those Goudstikker works that had been purchased by Goering, but that petition was denied. However, in 2001, the government reevaluated its prior restitution process and, on the basis of “moral policy” turned over to von Saher those paintings from the Goering collection that were still in the Dutch government’s possession. This did not, of course, include the Cranach panels, which were in the museum’s collection in California. In 2007, von Saher commenced the first of her actions for return of the Cranach panels, arguing that the Dutch government could never have taken ownership of the panels, but merely served as custodian of the paintings until the original owners or their heirs claimed them.

Timeliness: Statute of Limitations

From 2007 until 2015, the question of the Cranach panels’ ownership played out in the context of motions to dismiss – first with respect to whether the suit was barred by the expiration of the statute of limitations, and then with respect to whether it was barred by the act of state doctrine.

Concerned that California’s three-year statute of limitations was presenting an unfair burden on claimants with respect to Holocaust and in Nazi-era looting cases, the California legislature extended that statute of limitations, but only for such Holocaust and Nazi-era looting claims. The museum filed a motion to dismiss, arguing that the California statute extending the limitations period unconstitutionally intruded upon the federal government’s “exclusive power to make and resolve war, including the procedure for resolving war claims.”^[15] The district court agreed, and dismissed the case; however, the 9th Circuit reversed, finding the California extension of its statute of limitations unconstitutional. The Circuit Court granted leave for von Saher to amend her complaint.^[16] The museum amended its motion to dismiss, arguing that the statute of limitations applicable to the Cranach panels had long since expired, since it had begun to run at the time that Goudstikker’s widow, Desi, had discovered the location of the panels after the war. The district court, in a 2015 decision,[17] disagreed with the museum’s position, holding that, under California law, the statute of limitations for the return of stolen property begins to run anew against each subsequent owner of the property. To review an extended discussion of statutes of limitations as they relate to Nazi-looted art (and to the von Saher case specifically), see my previous discussion here.

Foreign State and Finality: Act of State Doctrine

With respect to von Saher’s amended complaint, the district court granted the museum’s second motion to dismiss, holding that von Saher’s claims were preempted by the act of state doctrine.^[18] Quoting the Solicitor General’s brief with approval, the district court found that “[w]hen a foreign nation, like the Netherlands here, has conducted bona fide post-war internal restitution proceedings following the return of Nazi-confiscated art to that nation under the external restitution policy, the United States has a substantial interest in respecting the outcome of that nation’s proceedings.”^[19] The 9th Circuit, however, reversed that decision, remanding the case for development of the parties’ factual positions via discovery. The court stated that “[t]he Museum has not yet developed its act of state defense, and von Saher has not had the opportunity to establish the existence of an exception to that doctrine should it apply.”[20]

Summary Judgment: Act of State

After the parties had the opportunity to flesh out their factual arguments, the district court once again considered the question of whether the action was barred by the act of state doctrine. On Aug. 9, 2016, the district court issued a decision granting the museum’s motion for summary judgment,[21] finding that after the Goudstikker firm decided not to file a claim for return of the paintings, title passed to the Dutch government, and the Dutch government had good title to the paintings at the time it transferred the paintings to Stroganoff. Stroganoff, in turn, passed good title to the paintings to the museum.

In affirming the district court’s decision granting the museum’s motion for summary judgment, the 9th Circuit relied upon the act of state doctrine, which is “a ‘rule of decision’ requiring that ‘acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid’” and are not to be overturned by U.S. courts.[22] The court explained that “we apply the doctrine here, because ‘the relief sought’ by von Saher would necessitate our ‘declar[ing] invalid’ at least three ‘official act[s] of’ the Dutch government ‘performed within its own territory.’”[23] Von Saher has petitioned the 9th Circuit for a rehearing of the motion for summary judgment. Such rehearing petitions are rarely granted, and von Saher’s previous petitions for rehearing at earlier stages in the case were unsuccessful. Absent a rehearing, von Saher’s likely recourse would be an appeal to the U.S. Supreme Court. Even if the Supreme Court were to grant certiorari, von Saher faces stiff odds against a reversal of the decision on the act of state doctrine.

[1] Lucas Cranach the Elder, Adam (c. 1530), oil on panel, 75 x 27-1/2 in. (190.5 x 69.9 cm), available at https://www.nortonsimon.org/art/detail/M.1971.1.P.

[2] Lucas Cranach the Elder, Eve (c. 1530), oil on panel, 75 x 27-1/2 in. (190.5 x 69.9 cm), available at https://www.nortonsimon.org/art/detail/M.1991.1.P.

[3] See, e.g., “Woman in Gold” (2015), available at https://www.imdb.com/title/tt2404425/; “Monuments Men” (2014), available at https://www.imdb.com/title/tt2177771/.

[4] Hector Feliciano, “The Lost Museum,” p. 23 (1997).

[5] Id. at 4.

[6] See, e.g., Menzel v. List, 267 N.Y.S.2d 804 (N.Y. 1966) (seeking to recover a painting by Marc Chagall that hung in the Menzel’s Brussels apartment when they fled Belgium before the Nazi occupation).

[7] See, e.g., Vineberg v. Bissonette, 529 F.Supp.2d 300, 307 (D.R.I. 2007) (noting that “the Nazi government forced Dr. Stern to liquidate inventory in his art gallery and controlled the manner of the forced sale,” and concluding that “Dr. Stern’s surrender of the painting to [the auction house] for auction was ordered by the Nazi authorities and therefore the equivalent of an official seizure or a theft.”). But see Orkin v. Swiss Confederation, 770 F.Supp.2d 612, 616 (S.D.N.Y. 2011) (dismissing the action for lack of jurisdiction, because “[p]laintiff does not allege that Reinhart acted in any capacity other than as a private individual.” The court noted that “[i]n 1933, [Plaintiff’s grandmother] sold the drawing to Swiss art collector Oskar Reinhart for 8,000 Reichsmarks to help fund her family’s escape from the Nazis’ persecution of German Jews.”).

[8] See, e.g., Florian Weiland, “Ist Fluchtkunst dasselbe wie Raubkunst?” (Is flight art the same as looted art?), Sudkurier, Sept. 3, 2014, available at http://www.suedkurier.de/nachrichten/kultur/themensk/Ist-Fluchtkunst-dasselbe-wie-Raubkunst;art410935,7218364.

[9] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989, Case No. 16-56308 (9th Cir. July 30, 2018).

[10] Although the district court found that the Stroganoff family never owned the panels, Stroganoff ownership of the panels is unclear from the evidence presented.

[11] von Saher v. Norton Simon Museum at Pasadena, 2016 U.S. Dist. LEXIS 187490, Case No. CV 07-2866 (C.D. Cal. Aug. 9, 2016).

[12] The Dutch restitution and restoration of rights regime was re-assessed in the 2000s, and that reassessment resulted in the Dutch government turning over to von Saher those Goudstikker works that were at that time still held by the Dutch government.

[13] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989 at *9.

[14] Id. at *10.

[15] von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV-07-2866-JFW, 2007 WL 4302726 (C.D. Cal. Oct. 18, 2007).

[16] von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), amended by von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010).

[17] von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV 07-2866-JFW, 2015 U.S. Dist. LEXIS 188627 (C.D. Cal. April 2, 2015).

[18] von Saher v. Norton Simon Museum at Pasadena, 862 F.Supp.2d 1044 (2012).

[19] Id. at 1051.

[20] von Saher v. Norton Simon Museum at Pasadena, 754 F.3d 712, 727 (9^th Cir. 2014).

[21] von Saher v. Norton Simon Museum at Pasadena, 2016 U.S. Dist. LEXIS 187490, Case No. CV 07-2866 (C.D. Cal. Aug. 9, 2016).

[22] von Saher v. Norton Simon Museum of Art at Pasadena, 2018 U.S. App. LEXIS 20989, Case No. 16-56308, at *19 (9^th Cir. July 30, 2018).

[23] Id.

Persepolis Collection: Iranian Artifacts Immune from Execution

By Kevin P. Ray on March 15, 2018 Posted in Art Recovery, Cultural Plunder, Museum Operations, Stolen Art

This version contains a revision

On February 21, 2018, the Supreme Court of the United States issued a decision,[1] affirming the United States Court of Appeals for the Seventh Circuit’s 2016 decision[2] that held that a collection of ca. 30,000 ancient Persian artifacts[3] that have been on loan to the University of Chicago’s Oriental Institute since 1937 is immune from attachment and execution to satisfy a judgment against the Islamic Republic of Iran. The decision concluded a decades-long effort by the plaintiffs, a group of American citizens seriously injured in a suicide bombing in Jerusalem in 1997.[4] The plaintiffs sued the Islamic Republic of Iran in U.S. District Court for the District of Columbia for Iran’s role in providing material support to the terrorists, and obtained a $71.5 million default judgment (and an additional $300 million in punitive damages). [5]

The Persepolis Collection and Other Persian Artifacts

The plaintiffs initially sought to execute on the judgment against “four collections of ancient Persian artifacts … the Persepolis Collection, the Chogha Mish Collection, and the Oriental Institute Collection, all in the possession of the University of Chicago; and the Herzfeld Collection, split between the University and Chicago’s Field Museum of Natural History.”[6] However, the court only had jurisdiction to consider attachment and execution upon those artifacts that were (1) owned by Iran, and (2) within the territorial jurisdiction of the court. During the pendency of the case, the Chogha Mish Collection was returned to Iran as a matter of cultural diplomacy, and so was not within the court’s territorial jurisdiction. The Oriental Institute Collection and the Herzfeld Collections (at both the University of Chicago and the Field Museum) are not the property of Iran, and so also were not available for attachment and execution. Only the Persepolis Collection met both requirements, being both property of Iran (on long-term loan to the University of Chicago) and located within the court’s territorial jurisdiction.

The Seventh Circuit issued its decision on July 19, 2016, holding that Section 1610(g) of the Foreign Sovereign Immunities Act (“FSIA”)[7] does not provide an independent basis to attach and execute against US-based property of a foreign state to satisfy a 1605A judgment. Rather, Section 1610(g) only operates when the subject property is exempt from immunity under a separate exception set forth in Section 1610. In so holding, the Seventh Circuit split with the Ninth Circuit’s decision in Bennett v. Islamic Republic of Iran,[8] which had held that Section 1610(g) did provide an independent basis to strip immunity from sovereign property located in the U.S. The Supreme Court took up the case to resolve this split, and to clarify the application of Section 1610(g) to questions of execution immunity for sovereign property.

Foreign Sovereign Immunity

The fate of the Persepolis Collection turned on the fairly arcane question of foreign sovereign immunity. As a general rule, foreign states have immunity from the jurisdiction of U.S. courts (jurisdictional immunity)[9] and their property located in the United States is immune from attachment, arrest, and execution (execution immunity).[10] Until the mid-twentieth century, the United States (and most other countries) observed the doctrine of absolute sovereign immunity, and no foreign state could be subject to the jurisdiction of the courts of another state. Early in the Nineteenth Century, the Court addressed the question of the doctrine of absolute sovereign immunity, which the Court stated derives from the “perfect equality and absolute independence of sovereigns.”[11] Foreign sovereign immunity was regarded as “a matter of grace and comity on the part of the United States,”[12] and was a function of the Executive Branch’s foreign affairs power. Under the absolute sovereign immunity doctrine, when a foreign sovereign was sued in a U.S. court, the foreign state would request a “suggestion of immunity” from the U.S. State Department. If the State Department granted the request, the court would surrender jurisdiction and the case would be dismissed.

In 1952, the U.S. abandoned the absolute sovereign immunity doctrine in favor of the restrictive theory of sovereign immunity, which was articulated in what has come to be called the Tate Letter, written by Jack B. Tate, the State Department’s Acting Legal Adviser.[13] Under the restrictive theory, a foreign sovereign remains immune from suit for its public acts, but is not immune with respect to its commercial activities. However, under the restrictive theory, sovereign property remained immune from execution. [14] Congress codified the restrictive theory in 1976 as the FSIA, adding exceptions for execution on foreign sovereign property.

Exceptions to Foreign Sovereign Immunity

Relevant to the Persepolis Collection, the FSIA does three things – (1) it establishes the basic principle that foreign sovereigns and their property are immune from suit and from execution in U.S. courts (including state courts);[15] (2) it provides specific exceptions to jurisdictional immunity so that, in certain circumstances, foreign sovereigns and their agencies and instrumentalities may be sued; and (3) it provides specific exceptions to execution immunity so that, in certain circumstances, sovereign property located in the U.S. may be subject to attachment, arrest, and execution. The plaintiffs were able to sue Iran and obtain their default judgment under the terrorism exception to the FSIA (providing an exception to jurisdictional immunity), which states, in pertinent part, that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.”[16]

In order for the plaintiffs to be able to execute on the Persepolis Collection, an exception to execution immunity was required. FSIA Section 1609 governs execution on sovereign property, and provides that “the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611.”[17] Section 1610(g) provides, in pertinent part, that “the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section”[18] (italics added). While Section 1610 generally requires that sovereign property be used by the foreign state in commercial activity in the U.S.,[19] the plaintiffs argued that “§ 1610(g) makes all Iranian assets available for execution without proof of a nexus to commercial activity – that is, without having to satisfy § 1610(a).”[20]

Justice Sotomayor, writing for the Court, agreed with the Seventh Circuit’s analysis of Section 1610(g), noting that that section:

…conspicuously lacks the textual markers, ‘shall not be immune’ or ‘notwithstanding any other provision of law,’ that would have shown that it serves as an independent avenue for abrogation of immunity. In fact, its use of the phrase ‘as provided in this section’ signals the opposite: A judgment holder seeking to take advantage of § 1610(g)(1) must identify a basis under one of § 1610’s express immunity-abrogating provisions to attach and execute against a relevant property.[21]

The Court explained that, rather than providing an independent basis for abrogating immunity, Section 1610(g) instead allows holders of judgments against foreign states under the terrorism exception (Section 1605A) to execute their judgments against property of “government instrumentalities established as juridical entities distinct and independent from their sovereign” without having to satisfy the Bancec factors, which courts developed in response to the Court’s 1983 Bancec decision.[22]

Because the artifacts comprising the Persepolis Collection are on loan to the University of Chicago for “research, translation, and cataloging,”[23] not for commercial activity,[24] the artifacts do not satisfy the requirements of Section 1610(a) and so remain immune from attachment, arrest, and execution. In clarifying the application of FSIA Section 1610(g), the Court has provided important guidance to a broad spectrum of cultural and educational institutions that engage in exchanges with foreign states, and their agencies and instrumentalities, including museums and libraries.

[1] Rubin v. Islamic Republic of Iran, No. 16-534, 2018 U.S. LEXIS 1376 (S.Ct. Feb. 21, 2018).

[2] Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7^th Cir. 2016).

[3] The Persepolis Collection consists of ca. 30,000 clay tablets and fragments “containing some of the oldest writings in the world.” Id. at 474. For more information about the Persepolis Collection, see https://oi.uchicago.edu/collections/highlights/highlights-collection-iran

[4] See “7 Killed in Bomb Blasts in Jerusalem,” CNN, Sept. 4, 1997, available at http://www.cnn.com/WORLD/9709/04/israel.blast.930/

[5] Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C. 2003).

[6] Rubin v. Islamic Republic of Iran, 830 F.3d at 473.

[7] 28 U.S.C. §§ 1602-11.

[8] Bennett v. Islamic Republic of Iran, 825 F.3d 949, 960 (9^th Cir. 2016).

[9] 28 U.S.C. § 1604.

[10] 28 U.S.C. § 1609.

[11] The Schooner Exch. V. McFaddon, 11 U.S. 116 (1812).

[12] Rubin v. Islamic Republic of Iran, 830 F.3d at 476 (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461, U.S. 480, 486 (1983)).

[13] Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dep’t of State, to Philip B. Perlman, Acting U.S. Attorney General (May 19, 1952), reprinted in 26 Dep’t St. Bull. 984-85 (1952) and Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15 (1976); see also Claire E. Stephens, “Storming the Persian Gates: The Seventh Circuit Denies Attachment to Iranian Antiquities,” 12 Seventh Circuit Rev. 164 (Fall, 2016).

[14] Rubin v. Islamic Republic of Iran, 830 F.3d at 477.

[15] Section 1604 of the FSIA states the basic rule: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in section 1605 to 1607 of this chapter.” 28 U.S.C, § 1604.

[16] The terrorism exception to the FSIA is codified at 28 U.S.C. § 1605A.

[17] 28 U.S.C. § 1609.

[18] 28 U.S.C. § 1610(g).

[19] See 28 U.S.C. 1610(a), stating, in part, that “[t]he property in the United States of a foreign state, … used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State.”

[20] Rubin v. Islamic Republic of Iran, 830 F.3d at 481.

[21] Rubin v. Islamic Republic of Iran, No. 16-534, 2018 U.S. LEXIS 1376 at *16-17.

[22] First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611 (1983).

[23] Rubin v. Islamic Republic of Iran, No. 16-534, 2018 U.S. LEXIS 1376 at *9.

[24] The FSIA defines “commercial activity” as “either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. 28 U.S.C. § 1603(d). The owner of the property must be the party engaged in the relevant commercial activity and there must be some nexus between the commercial activity and the property at issue. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 709 (9^th Cir. 1992); Altmann v. Republic of Austria, 317 F.3d 954, 969 (9^th Cir. 2002).

When Artists Disavow Their Work

By Kevin P. Ray on April 3, 2017 Posted in Art Conservation, Art Disavowal, Art Sales, Art Transactions, Authentication

Kevin Ray authored an article for the Spring 2017 issue of Best Lawyers – Business Edition, which discusses artists who have disavowed their work. Click here to read the full article.

The Restitution, Repatriation, and Return of Cultural Objects: The Parthenon Debate (Part II)

By Kevin P. Ray on April 7, 2016 Posted in Art Repatriation, Cultural Plunder

The Debate over the Parthenon Sculptures

Among disputes over removed cultural objects, perhaps few are better known than that concerning what were formerly known as the Elgin Marbles, which even the British Museum now prefers to call the Parthenon sculptures. It is important to note at the outset, however, that even though the Parthenon sculptures were removed during this long age of plunder, were not actually plundered. They were removed with the apparent permission of the government that had ruled the territory for four centuries. The source of the conflict over the sculptures is twofold – (1) Ottoman rule of the territory of modern Greece was in its final decades, and the movement in favor of Greek independence was on the rise (Greece would attain independence in 1832); and (2) the Parthenon, which even at the time had long been recognized as one of the finest examples of classical architecture and sculpture, became an important symbol of Greek independence and nationalism.

It is timely to consider the Parthenon sculptures as one example of how the past is sometimes not even past. This year marks the 200^th anniversary of the British Museum’s acquisition of the sculptures from Lord Elgin. The sculptures comprise roughly 50 percent of the surviving sculptures from the temple, the other half held by the Acropolis Museum in Athens. Additionally, fragments from the Parthenon are held by several other museums, including the Musée du Louvre and the Vatican Museums. Some fragments have been returned to Greece, including those given by the University of Heidelberg and a museum in Palermo, Sicily (the Greek government then loaned this fragment back to Palermo). The Vatican Museums loaned one of its fragments to the Acropolis Museum.

The Parthenon was constructed between 447 and 432 B.C.E., and is regarded as the exemplar of classical art and architecture at the height of Periclean Athens. It was designed and built by the architects Ictinus and Callicrates under the supervision of the sculptor Phidias, and it originally served as a temple to Athena and as a symbol of Athenian civic life. Part of the temple was destroyed by fire in 195 B.C.E., with more destructive fires occurring with the invasion of the Germanic Heralic tribe in A.D. 267 and the Visigoth sack of Athens under Alaric in 396 C.E. In the 5^th century C.E. it was transformed into a Greek Orthodox cathedral (Theotokos Atheniotica), then a Roman Catholic cathedral (Notre Dame d’Athenes) under the Franks in 1204, and, in 1458, under Ottoman rule, it was again transformed into a mosque. In 1687, the Parthenon was being used as a military center. During the bombardment of Athens by Venetian forces, a powder magazine located in the Parthenon suffered a hit, and the resulting explosion destroyed a large part of the structure. At the time of Lord Elgin’s ambassadorship, the Parthenon was still being used by the Ottoman army, and was referred to as the “citadel.” Continue Reading

The Restitution, Repatriation, and Return of Cultural Objects: The Parthenon Debate (Part I)

By Kevin P. Ray on April 6, 2016 Posted in Art Repatriation, Cultural Plunder

This article is the fourth in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series addressed the restitution of stolen cultural objects. The second article (available here, here, and here) discussed developments in the restitution of cultural objects taken during World War II. The third article discussed the restitution of illicitly excavated and/or illicitly exported cultural objects. This article discusses the return of cultural objects removed during the period before legal norms developed protecting and prohibiting the destruction of cultural property during times of armed conflict, with particular reference to the long-standing dispute concerning the Parthenon sculptures. The remaining article (which will appear in coming weeks) will discuss issues in the repatriation of tribal and indigenous cultural objects.

Cultural Property and Plunder in the Age of Empires

In thinking about some competing claims to cultural property, the well-worn line from William Faulkner rings true: “The past is never dead. It’s not even past.”[1] Many past practices, though commonplace and accepted in their day, are considered improper or unjust today. In the area of cultural property, it was common practice for millennia for invading or occupying powers to take as plunder or tribute the cultural treasures of the vanquished.[2] An international legal norm against these types of takings only began to emerge in the mid-19^th century and even then it was the early 20^th century before those norms crystalized into generally accepted (and enforceable) international legal rules (even so, it applied only to destruction or plunder of cultural property during periods of armed conflict, and said nothing of the protection of cultural property during peacetime). Inevitably, many public and private collections around the world contain objects that were removed – and perhaps more than once – during this long age of plunder.[3] Continue Reading

Object Lessons: De Sole v. Knoedler & Company (Part II)

By Kevin P. Ray on March 7, 2016 Posted in Fakes/Forgeries

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The Forger’s Art

In a case involving the sale of a fake or forged work of art, typically the first order of business is for the plaintiff to establish that the work is, in fact, not authentic, with each side marshaling its experts. In the case of the De Sole Rothko, this step was unnecessary. Before the trial commenced, Rosales entered a plea, admitting guilt, in a criminal action brought by the U.S. government. In a statement read into the record at the time of her plea, Rosales admitted that “I agreed with others to sell works of art claimed to be created by various expressionist artists, including Mark Rothko, Jackson Pollock, and Robert Motherwell, and to make false representations as to the authenticity and provenance of those works…All of the works I sold to [Knoedler Gallery] …were, in fact, fakes.”[1] Rosales’s accomplices – her boyfriend, art dealer Jose Carlos Bergantiños Diaz, his brother, Jesus Angel Bergantiños Diaz, and the actual forger, Pei Shen Qian[2] – were also indicted.[3] All three men fled the United States – the Diaz brothers to Spain and Qian to China. [4]

Object Lessons: De Sole v. Knoedler & Company (Part I)

By Kevin P. Ray on March 4, 2016 Posted in Fakes/Forgeries

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In 2011, the 165-year-old Knoedler & Company (“Knoedler”), one of Manhattan’s most venerable galleries, abruptly closed its doors amid accusations that the gallery had been selling fakes for more than a decade. Ten lawsuits have been filed against the gallery and its former director, Ann Freedman,[1] six of which have ended in settlements. Four suits remain pending. These cases have involved works purporting to be by Robert Motherwell;^[2] Jackson Pollock^[3]; Clyfford Still; [4] Willem de Kooning;^[5] and Mark Rothko.[6] The most recent of these to settle is the suit brought by collectors Domenico and Eleanore De Sole (the “De Soles”) against Knoedler and Freedman. That suit produced two weeks of closely-watched testimony before the parties reached separate agreements on February 7^th (with respect to Freedman) [7] and Februray 10^th (with respect to the gallery).[8]

Since the De Sole case settled, it did not elicit a refined judicial statement on the due diligence required of a sophisticated collector when purchasing a work of art or, conversely, the due diligence required of a leading gallery when investigating a work’s provenance and authenticity, as some commentators had hoped. However, the trial is important because it opened a window into how an artwork’s provenance is investigated, and how a work is authenticated and an attribution established. It is a case study in interpretation, misinterpretation, and misdirection. This case offers lessons not only in due diligence, but in the importance of maintaining a self-protective skepticism in the highly relationship-based environment of art transactions. The question this case asks, for the collector, the gallerist, and the authenticator, is: “What information can and should a person rely on?”[9]

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Art Consignment and the Risk of Fraud

By Greenberg Traurig on December 11, 2015 Posted in Art Consignment, Art Loans, Fakes/Forgeries

Kevin Ray authored an article for the December 2015 issue of The Secured Lender which discusses art consignment fraud. Click here to read the full article.

Cassirer v. Thyssen-Bornemisza Collection Foundation: Application of Spanish Law of Adverse Possession Vests Title to Pissaro Painting in Spanish Museum, Not Original Owner’s Heirs

By Kevin P. Ray on July 9, 2015 Posted in Art Recovery, Stolen Art

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In 1926, Lilly Cassirer Neubauer inherited a painting by Camille Pissaro, Rue St. Honore, apres midi, effet de pluie (1897). As German Jews, Lilly and her husband were subjected to the discriminatory racial laws of the Third Reich. They fled Germany in 1939, but as a condition of their receiving exit visas to leave the country, Lilly was required to “sell” the painting to a Nazi art appraiser for payment of ca. $350, which was deposited in a blocked bank account to which Lilly was not given access.

After the war, the painting was purchased by a Los Angeles collector, then by a St. Louis collector, and, in 1976, by Baron Hans-Heinrich Thyssen-Bornemisza of Lugano, Switzerland (the Baron). The Baron displayed the painting there, as part of the Thyssen-Bornemisza Collection (the Collection). In 1988, the Baron and the Kingdom of Spain entered into an agreement for the Baron to loan the Collection to Spain. Spain established a private, non-profit foundation to “maintain, conserve, publicly exhibit, and promote artwork from the Collection,” of the Thyssen-Bornemisza Collection Foundation (the Foundation), and also restored the Villahermosa Palace in Madrid to house the Collection. Ultimately, in 1993, Spain purchased the Collection from the Foundation.

Lilly’s heirs discovered the painting at the Foundation in 2001, and petitioned Spain and the Foundation to return the painting. Spain’s Minister of Education, Culture and Sports denied that request. Subsequently, five members of the U.S. Congress wrote to the Minister, asking Spain and the Foundation to return the painting to Lilly’s heirs, which request was likewise refused.

New York Senate Passes Bill to Protect Art Authenticators

By Kevin P. Ray on June 29, 2015 Posted in Art Valuation, Authentication

After being subjected for years to ruinous litigation in suits brought by owners of artworks displeased with authentication opinions unfavorable to the owner’s preferred outcome, art authenticators – including artists authentication boards, authors of catalogues raissonne, and scholars – stopped giving authentication opinions. Even when they ultimately prevailed on the suits, the cost of the litigation was prohibitive. I have previously discussed the dilemma facing authenticators here.

In an attempt to provide art authenticators with some measure of protection, on June 15^th, the New York Senate approved a bill entitled “An act to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art,” S. 1229-A-2015 (the “Bill”). The Bill amends New York’s Art and Cultural Affairs Law to (i) add a definition of “Authenticator,” (ii) heighten the pleading standards for plaintiffs bringing actions against authenticators, (iii) preclude a prevailing plaintiff from receiving legal costs in suits against authenticators, and (iv) authorizes courts to grant prevailing authenticator legal costs, upon a finding of good and just cause.