This article is the third 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
Continue Reading The Restitution, Repatriation, and Return of Cultural Objects: House Passes Bill to Coordinate U.S. Cultural Property Protection
This article is th
e second 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 available here, addressed the restitution of stolen cultural objects. This article is the continuation of Part 1 and discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.
Museums’ Use of Technical Defenses: Von Saher and Beyond
The question of museums waiving defenses, as the AAM Standards suggest, has emerged as an important point of conflict in Nazi-era restitution cases. In a few instances, museums have filed quiet title actions against restitution claimants, asking courts to issue declaratory judgments that the museums have good title to the objects and/or the claimants’ rights have been lost due to statutes of limitations or laches. [See, e.g., Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007); Museum of Fine Arts, Boston v. Seger-Thomschitz, Case No. 08-10097-RWZ, 2009 WL 6506658 (D. Mass. June 12, 2009); Museum of Fine Art v. Schoeps, 549 F.Supp.2d 543 (S.D.N.Y. 2008).] Such cases remain rare, and are controversial. [See, e.g., Grosz v. Museum of Modern Art, 772 F.Supp.2d 473 (S.D.N.Y. 2010); Simon J. Frankel and Ethan Forrest, “Museums’ Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Restitution Claims – A Defense,” 23 DePaul J. Art, Tech. & Intell. Prop. L. 279, 281 (2013).] However, museums asserting statutes of limitations and laches defenses – what have become known as “technical defenses” – rather than allowing cases to be decided solely on the merits is not less controversial. [1]
This article is the second 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, available here, addressed the restitution of stolen cultural objects. This article discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.
Although it may seem counter-intuitive, some of the most important developments in the restitution of cultural objects and other assets confiscated in the period surrounding World War II have occurred only within the last decade or so. Some restitution was done, of course, at the conclusion of the war. The cultural objects that the Allied forces recovered were returned to the countries from whose citizens or museums they had been taken (in a process known as “external restitution”), for those countries to then return to their owners (“internal restitution”). However, those actions were complicated by the loss of people, records, communities, and communal memory. They were also complicated, prevented, or delayed by the resistance of governments and legal systems to adequately address the question of restitution, as well as a variety of political complications, not least of which was the Cold War, which locked people, cultural objects, and information behind the Iron Curtain. It took a combination of the end of Communism (with the unlocking of museums and archives in the former Soviet territories), the publication of pioneering studies of Nazi-era looting, and the persistent efforts of organizations like the Claims Conference and the World Jewish Congress to raise public awareness of the continuing problem of restitution. The statements of principles, statements of ethics, settlements, and court decisions have produced (and continue to produce) a profound change in the art trade and museum practice with respect to the understanding and treatment of confiscated and duress sale cultural objects. These efforts have produced an on-going reassessment of the question of restitution, whose effects will be felt in many other restitution contexts as well.
“Art” is famously difficult to define. To many artists, a definition is either a challenge or an offense. For the art trade, the working definition is pragmatic and fluid – art is a tangible object embodying the creative efforts of one or more individuals, generally in certain traditionally recognized media such as painting and sculpture, but also ceramics, textiles, and, increasingly, conceptual art and art in new media. The term “cultural property” developed from a need to recognize a broader body of objects, which includes artworks, but is not limited to artworks. Cultural property also includes antiquities, books, manuscripts, scientific collections, collections of books or archives, monuments of architecture, groups of buildings, and archeological sites. It has further expanded to include ethnological and paleontological objects.
The term “cultural property” was first used in an international instrument in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.1 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property2 expanded the protection afforded to cultural property to include peacetime, and identified cultural property as “property which, on religious or secular grounds, is…of importance for archaeology, prehistory, history, literature, art or science.”
Continue Reading The Future of History – Repatriation of Cultural Property
At the recent Frieze art fair in London, Italian mid-twentieth century work moved briskly. Sotheby’s Italian and Contemporary sales broke records, including the highest price ever paid for the work of Piero Manzoni, whose “Achrome” sold for £12.6 million. Several galleries focusing on Italian art of the 1950s and 1960s recently opened in London and Paris. Some have suggested that the rising amount of sales activity in Italian mid-century work is driven, at least in part, by pressure exerted by Italian laws restricting the export of art. The Art Newspaper recently reported that “[d]ealers and collectors are rushing to export works from Italy before they fall under the restrictions. . . . The number of works by Arte Povera artists (such as Alberto Burri, Alighiero Boetti, Mario Merz and Michelangelo Pistoletto) sold at auction has grown from 35 in 1997 to nearly 300 in 2013.” Of course, increased auction sales reflect changing tastes and collector interests, but the looming effect of export restriction casts a long shadow over the Arte Povera works held in both public and private collections in Italy.
Continue Reading Export Restrictions: Italian Mid-Twentieth Century Art