Stolen Art

COMM 383

Art and Entertainment Law

Topics• Introduction • Italy Takes on U.S. Museums

– Getty– Met

• And Individual Collectors• Former Owners vs. Good Faith Purchasers

– Byzantine Mosaics– Monet’s “Wheatfields at Vétheuil”– Chagall’s “The Cattle Dealer”

• Seizure of Art on Loan– Schiele’s “Portrait of Wally” and “Dead City III”

Introduction

• Art stolen from museums– Guggenheim

– Art Institute of Chicago

– Gardner

– MOMA

– Munch Museum

• Art Stolen in Transit– Goya

Italy Takes on Museums

• Stolen art in museums– Getty– Metropolitan Museum of Art (NY)– Boston Museum of Fine Arts

Italian Cultural Properties Law

• 2001 Cultural Properties Law– Artifacts (sculpture, decorated vessels, jewelry,

weapons, armor, mosaics, wall paintings . . .) from the period 9th century B.C.E. to 4th century C.E. can be imported into the US only if

• They have an export permit issued by Italy• There is verifiable documentation that they left Italy before

1/23/01

• 1039 Italian Patrimony Law– Seeks to recover artifacts which left Italy before the

2001 law took effect

The Met Negotiates with Italy

• Artifacts returned; artifacts lent long-term

Boston Museum of Fine Arts Negotiates

• Artifacts returned; artifacts lent

Italy Pressures Individual Collectors

• The new Greek and Roman galleries at the Met are named for and financed by ($20 million) Mr. Levy and Ms. White

• Leon Levy Foundation donated $200 million to NYU to establish an institute of ancient studies

• Ms. White has financed many archaeological excavations

Stolen Art and War

Quedlinburg Treasure

G.I. Joe Meador

Former Owners vs. Good Faith Purchasers

• Legal Concepts– Statute of limitations

• A statute “declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued.” (Black’s)

• The statute starts to run when the identity of the party is known [or reasonably should be known], demand is made for the return of the stolen party, and the demand is refused.

• Differs from one state to another– NY: 3 years

– IN: 6 years

Former Owners vs. Good Faith Purchasers

• Legal Concepts– Due diligence--”prudence; vigilant activity;

attentiveness; or care, of which there are infinite shades” (Black’s)

– Three degrees• Low or slight [“that which persons of less than common

prudence, or indeed of no prudence at all, take for their own concerns”]

• Common or ordinary [“that which men, in general, exert in respect of their own concerns”]

• High or great (“that which very prudent persons take of their own concerns”]

Former Owners vs. Good Faith Purchasers

• Legal Concepts– Laches-”inequity of permitting a claim to be

enforced” (Black’s)– Estoppel by laches--”a failure to do something

which should be done or to claim or enforce a right at a proper time”

Autocephalous Greek-Orthodox Church v. Goldberg

Autocephalous Greek-Orthodox Church v. Goldberg

• Facts– The property in dispute: 4 rare 6th century

Byzantine mosaics, housed for 1400 years in a church on Cyprus. Cyprus was occupied by the Turks between 1974 and 1976. When the Greek Cypriots relocated they found the mosaics missing in 1979

Goldberg

Facts Mrs. Goldberg is set up by art dealers in Indianapolis to view and buy the mosaics$1,080,000 is paid, divided as follows$350,000 to the person who claims to own the mosaics$282,500 to a Dutch art dealer (commission)

$297,500 to her Indy contact, Fitzgerald (commission)$150,000 to a attorneys

Goldberg

• Facts– Within 6 months she uses another art dealer to

offer to sell the mosaics to the Getty for $20 million.

– The curator, Marion True, contacted Cyprus to see if these were the missing mosaics.

Goldberg

• Due diligence analysis– Upon discovering the theft, Cyprus had

• Contacted UNESCO

• Contacted museums and curators

• Contacted embassies and consulates

• Corresponded with Byzantine experts

• Advertised in journals

Goldberg

• Conclusion:– Due diligence was met– Goldberg must return the mosaics to Cyprus

Goldberg: Analysis under Swiss Law

• Swiss law requires the purchaser to act “in good faith”

• There is NO good faith if an honest and careful purchaser in the particular circumstances would have had DOUBTS with respect the the capacity of the seller to transfer property rights

• Mrs. Goldberg should have had doubts

Facts suggesting doubts

• The art came from an occupied country and the seller was of the nationality of the occupier

• The art had been part of a building• She knew nothing about the seller• Haste• She paid $1.08 million and asked for $20 million

in 6 months• There was no record of the calls

Monet:”Wheat fields of 1881” Cleveland Museum of Art

Deweerth v. Baldinger

• Facts– 1945: A Monet painting, Champs de Blé à Vétheuil, went

missing from DeWeerth’s sister’s home at which American soldiers were stationed in World War II

– 1946: DeWeerth tried to locate the painting**– 1956: Wildenstein and Co. had consignment of the painting

from an art dealer in Geneva– 1957: Wildenstein sold the painting to Baldinger for

$30,900– 1957 and 1970: the painting was exhibited in NY– 1982: DeWeerth located the painting (now worth $500,000)

and demanded its return, suing in Federal Court in NY

Deweerth v. Baldinger

• Due diligence analysis**– What DeWeerth did

• 1946: DeWeerth filed a (standard form) report with the military government in Bonn-Cologne

• 1948: DeWeerth wrote to an attorney regarding the insurance claim (not covered)

• 1955: DeWeerth sent a photo of the painting to an expert in Medieval painting and he did not begin a search

• 1957: DeWeerth sent a list of missing art to the West german FBI• . . . . . . . . . .• 1981: DeWeerth’s nephew located the painting using Catalogue

Raisonné in a 3 day investigation

Deweerth v. Baldinger

• Due diligence analysis**– What DeWeerth did not do

• Contact agencies (German and American) whose task was to locate stolen art after the war

• Publicize in stolen art journals• Continue the investigation between 1957 and 1981 (when

there were 2 exhibits in NY)• Consult Catalogue Raisonné• In short, DeWeerth did not do the things which were most

likely to be successful

Deweerth v. Baldinger

• Due diligence analysis– Conclusion: There was no due diligence.– Baldinger gets to keep the painting– Affirmed on appeal

• The (Federal) Court of Appeals for the Second Circuit affirms,• This court notes that the highest state court in NY had not

ruled on “due diligence” and GUESSES that it would choose to apply a due diligence analysis

Reproduction of “The Cattle Dealer”

Guggenheim v. Lubell

• Facts– About 1965: the Guggenheim concluded that the watercolor study

for the oil painting by Chagall, “Le Marchand de Bestiaux”, was “missing”

– 1967: Lubell purchased the work from a Madison Ave. art dealer for $17,000

– 1967: red flag-- the bill of sale noted the work once belonged to a person suspected of being a thief

– 1970: The Guggenheim conducted an inventory and confirmed the work’s disappearance

– 1980’s: Lubell sent the work for appraisal at Southebys and it was recognized as the missing work

– The Museum sued in state court for its return

Guggenheim v. Lubell

• Due diligence– What the museum did

• Looked inside the walls of the building on 5th Ave. at 89th Street

Guggenheim v. Lubell

• Due diligence– What the museum did not do

• Publicize the theft

• Notify other museums

• Notify auction houses

• Etc.

Guggenheim v. Lubell

• Due diligence analysis by the NY appellate courts– Rejection of a due diligence analysis

• Too difficult to specify the type of activity that would be required to show due diligence

• The burden is on the purchaser to prove the art is NOT stolen• A NY statute requiring due diligence had been vetoed by the

Governor on the advice of the State Dept., the Dept. of Justice and USIA

– Such a requirement would make NY a haven for stolen cultural property

• Remanded for trial on the issue of estoppel by laches, but settled on the eve of the trial date

Interaction Between the Deweerth and Guggenheim

Cases• After the NY Court of Appeals ruled that NY would

not use a due diligence standard in stolen art cases, in 1992 DeWeerth sued once again, claiming her suit was subjected to the wrong analysis. The trial court awarded her the painting.

• Baldinger appealed, and in 1994 the Federal Appellate court overturned the trial court’s ruling, saying that it “inappropriately disturbed a final judgment in a case that had been fully litigated.” DeWeerth cannot reopen a closed case “to gain the benefit of a newly announced decision of a state court.”

Portrait of Wally

MOMA’s Saga: The Schiele Matter

• Facts– 1997: The Leopold Foundation in Vienna loaned 150

works by Egon Schiele to MOMA for a 3 month exhibit– New Year’s Eve 1997: MOMA received a letter

claiming that 2 works were taken by the Nazi’s 60 years ago and demanding that MOMA keep the paintings until ownership could be resolved

• Heirs of Lea Bondi--”Portrait of Wally”• Heirs of Fritz Grunbaum--”Dead City III”

– January 1998: MOMA responded that it is “under a contractual obligation to return” all of the works

MOMA’s Saga: The Schiele Matter

• Supoena duces tecum: hours before “Wally” was to fly out of NY, a subpoena was served on MOMA ordering them to produce the paintings before a grand jury

• MOMA moved to quash the subpoena

MOMA’s Saga: The Schiele Matter

• Supoena duces tecum• Trial court (New York Supreme Court)

– NY Art and Cultural Affairs Law §12.03 prohibits seizure of fine art on route to, while showing, or on return to the lender

– Policy behind §12.03--free flow of art to NY– Legislative history suggested no loopholes: “allay the fears

of potential exhibitors and enable the State of NY to maintain its pre-eminent position in the arts”

• Appellate Division reversed the trial court• Court of Appeals (NY’s highest court) reversed the

appellate division

MOMA’s Saga: The Schiele Matter

• Seizure– Federal prosecutors in Manhattan obtained a

seizure warrant which prevented “Wally” from being returned

– Claim; “Wally” is stolen property. The Leopold Museum did not have good title.

• National Stolen Property Act (NPSA) “proscribes the transportation of stolen property in interstate and foreign commerce.”

Commentary

• Why would the United States government “use public resources to recover private property on behalf of a foreign individual against a foreign museum, particularly where the foreign lender has abundant reason to believe it actually owns the property?”

• With all of this free help there is no incentive for parties to do anything; they could have brought a claim against the Leopold (50 years ago).

And the Saga Continues

• Amended complaint #1

• Amended complaint #2

• Amended complaint #3

• “Wally” has been in a crate for 7 years, and no resolution in sight . . . .