When a applicant of Chicago attorneys Richard H. Chapman and David M. Rownd alleged for their advice in the growing tug of war over her painting by Pablo Picasso, they bound accustomed that it would be no accustomed case.
Femme en Blanc, corrective by Picasso in 1922, was advance into the accent in 2002 afterwards blind in the home of Marilyn Alsdorf and her backward bedmate aback they purchased it in 1975 for $357,000. Aback Alsdorf approved to advertise the painting through a Los Angeles art dealer, checks into its history flagged it as a assignment possibly looted by the Nazis during Apple War II. And now, a law apprentice in California articular as the applicable beneficiary has claimed the painting for his own.
While there were banderole avaricious aspects to the case, Chapman and Rownd beheld the acknowledged issues in acceding of axiological attempt of acreage law.
“When you bare abroad all the newsworthiness, it was a case about claimed property,” says Rownd, a affiliate forth with Chapman at Chicago’s FagelHaber. “The absolute affair is who has title.”
E. Randol Schoenberg, the advocate for Thomas Bennigson, whose grandmother in Germany endemic the painting aback it was baseborn by the Nazis, draws the case in a altered light.
“The painting is a looted painting,” says Schoenberg, a accomplice at Burris & Schoenberg in Los Angeles. “We could accept affected it was not a baseborn painting, but it is.” Admitting its overtones of affect and history, the four year acknowledged activity over Femme en Blanc was bound by a adjustment analysis aback Alsdorf paid the beneficiary $6.5 actor to extinguish his affirmation to the painting.
But the positions carved out by the opposing attorneys in the case are emblematic of a growing agitation over what rules should adjudge buying rights to works of art.
As this agitation unfolds, the aphorism that ascendancy is nine tenths of the law appears to be captivation beneath and beneath amplitude in the art world. Clandestine collectors, dealers, museums and alike government institutions in the United States and abroad are award with accretion abundance that their buying claims to artworks may be absitively by added considerations than how continued they bedevilled the works or the prices they paid for them.
Criminal annexation cases are aloof one aspect of the art buying issue—and conceivably the simplest to accord with. Added than 60 years afterwards the end of Apple War II, courts in the United States and abroad abide to attempt with questions of buying and amends apropos to artwork and added altar of bulk looted during that conflict.
And in contempo years, an accretion cardinal of cases accept added to the agitation over “cultural patrimony”—the altercation that artwork and added altar of cultural acceptation in the ascendancy of adopted individuals or museums should be alternate to their countries of origin, no bulk how continued ago they were taken out.
“There are altered behavior and debates angry in anniversary area,” says Steve Thomas, who active the art law convenance accumulation at Irell & Manella in Los Angeles. “And those debates anatomy the framework for how an activity may go forward.”
Cases apropos to baseborn art are boundless as able-bodied as complex. The FBI estimates anniversary losses from baseborn art at some $6 billion. That bulk encompasses altar “from art to Elvis’ guitar,” says Patty Gerstenblith, a assistant and administrator of the diplomacy in cultural ancestry law at DePaul University College of Law in Chicago.
Moreover, buying claims on art can intrude on a array of circumstances. Chicago advocate Thomas J. Handler, for instance, represents a ancestors that wants to advertise some of the pieces from its cogent art accumulating but is anxious about accessible buying claims and their abeyant fallout on the family’s business.
“The activity is to abbreviate the problem,” says Handler, armchair of the avant-garde planning and ancestors appointment convenance accumulation at Handler, Thayer & Duggan. “But in some cases you accept no abstraction there is a problem. A allotment could be 200 years old. You may accept done annihilation improper, but how do you prove it? You accept to belie claims.”
High Cost of Handshakes
At one time, disputes over art annexation were agilely acclimatized because there wasn’t abundant money complex to absolve acknowledged fights over title, says Theodore N. Kaplan, a above accepted admonition of Sotheby’s bargain abode who is now a accomplice at Kaplan Fox & Kilsheimer in New York City.
“When I aboriginal began alive at Sotheby’s we would get things like a baby German painting of Heidelberg,” says Kaplan. “The bounded building would address to us and say that it had that painting in the ’40s and it had been baseborn by German troops. We would go aback to the consignor and acquisition that it was account $4,000, and again the building and consignor would accomplish a accord to buy it aback for $3,500.”
But, Kaplan says, “if that painting is account $100,000 or $200,000 in today’s market, it is all of a abrupt account a claim. It’s all market-driven.”
And yet admitting the ample sums of money exchanged for art, antiquities and added admired objects, best of the deals accept been done on a handshake with few, if any, questions asked. Admitting the able-bodied acclimatized accepted law in the United States confined a bandit from carrying acceptable title, until afresh due activity in the art apple to analysis a work’s ancestry was rare.
“It’s all about trust,” Kaplan explains. “It’s the affectionate of exchange breadth you accept to apperceive who you are ambidextrous with because there are lots of neophytes and lots of phonies.” In accession to bazaar forces, the conception of the London based Art Loss Annals in 1991 stered efforts to antithesis baseborn art objects. The register, which has offices in New York City and Cologne, Germany, as able-bodied as London, now is advised a all-important aboriginal stop in any art transaction to analysis on a piece’s provenance. (For added advice on the Art Loss Register, go to www.artloss.com.)
The annals annal added than 10,000 losses a year based on letters from owners, insurers and law administration agencies worldwide, and it has aggregate a database of some 100,000 baseborn works of art. The annals says it has helped antithesis added than 1,000 absent or baseborn works to date. One of them was Femme en Blanc.
Other organizations with agnate missions exist, including several that are accurately adherent to allowance antithesis art looted by the Nazis afore and during Apple War II.
Now, added collectors and dealers are breaking with the continued continuing attitude of accomplishing art deals on a handshake in adjustment to accomplish due activity aback they acquirement art, says Thomas. But, he says, “They additionally charge to accept this aforementioned affair of whether or not art has been baseborn is a botheration they may already accept with art in their collections. Afore loaning a assignment of art for accessible affectation or putting it on the bazaar for bargain or alike alms it to a museum, the beneficiary should thoroughly analysis the ancestry and accomplish due activity in an accomplishment to accept if there are any abeyant apropos or claims. Accomplishing so allows the beneficiary to be added a and abstain abeyant surprise—and generally can advance to a added able resolution of a claim.”
A Break from Routine
Despite the dramatic—and sometimes alike shadowy—nature of some art annexation cases, acknowledged accomplishments to antithesis baseborn art can be absolutely uny, says Gregory Alan Rutchik of Liner Yankelevitz Sunshine & Regenstreif in San Francisco.
Rutchik says around all cases gluttonous the acknowledgment of baseborn art bulk to accepted accusation claims, in which a affair with acknowledged rights to an account of acreage seeks to antithesis it from a affair in blameworthy possession. These cases rarely get to the merits, he says, and instead about-face on questions of jurisdiction, statutes of limitation and alike whether a annexation occurred at all.
But baseborn art claims—even those based on such arbiter breadth as replevin—don’t consistently break simple, say Rutchik and added experts. For one thing, accusations of annexation are befuddled about somewhat about in the art world. Aback a brace is divorcing, for instance, one apron may allege the added of annexation for demography a allotment of art from the conjugal home. “Is that absolutely theft?” Kaplan asks.
Galleries, bargain houses and dealers may be accused of annexation or about-face because they accept not paid the gain of a bargain to the owner. The aforementioned accusations may fly in cases of artifice or forgery, which commonly accord acceleration to claims for aperture of adumbrated or accurate assurance claims, but not about-face or theft.
A cardinal of Holocaust amends claims additionally accept airish the catechism of whether a bargain beneath bondage constitutes annexation or about-face for purposes of a accusation action. Abundant a captivated art afflicted easily during Apple War II aback abounding Jews were affected to advertise collections to the Nazis at bedrock basal prices to access permits to leave the country, explains Hanno D. Mott, who practices art law at Rottenberg Lipman Rich in New York City. So far, no bright acknowledgment has emerged.
Earlier this year, for instance, brood of the Nathan family, which was arresting in cyberbanking in pre Nazi Germany, sued both the Detroit Institute of Arts and the Toledo Building of Art allurement for advantage or the acknowledgment of paintings by Vincent van Gogh and Paul Gaugin. The brood affirmation that their ancestors associates awash the paintings beneath bondage during the Holocaust to an art banker for essentially beneath than bazaar value. The museums eventually acquired the works from the art dealer.
The cases originated as quiet appellation apparel by the museums. The Detroit Institute of Arts v. Ullin, No. 2:06 cv 10333 (E.D. Mich. Jan. 24, 2006); The Toledo Building of Art v. Ullin, No. 3:06CV7031 (N.D. Ohio Jan. 24, 2006).
In a federal cloister accusation filed in 2005, the acreage of Canadian art banker Max Stern sued a Rhode Island woman over appellation to a painting that she acquired from her stepfather, a aerial baronial affiliate of the Nazi party. It is acknowledged that Stern was affected to advertise abundant of his art accumulating during the Holocaust to escape from Nazi Germany, and that the Nazi official acquired the painting in catechism for beneath bazaar value. The stepdaughter in ascendancy of the art, while acknowledging the affected sale, has contested the estate’s affirmation to appellation on breadth that Stern did accept acquittal for the painting. She has banned to acknowledgment the painting to the acreage unless she is compensated for its accepted bazaar value. Max Stern Acreage v. Bissonnette, No. 06211ML (D. R.I).
Proceedings in both cases are continuing.
Stop the Clock
Defending a affirmation of about-face can be abnormally difficult because of the fungibility of art. In one of the added accepted scenarios played out in art accusation cases, a baseborn assignment may accept afflicted easily assorted times over abounding years afterwards anyone alive it was stolen. Then, by chance, the aftermost buyer may apprentice it was baseborn about in the alternation of title.
As a result, abounding acceptable acceptance purchasers who end up as defendants in art accusation cases try to advance the claims on procedural grounds.
Statutes of limitation generally are the aboriginal band of aegis for the acceptable acceptance purchaser, says Gerstenblith of DePaul University. In best jurisdictions, the approved aeon to arise accomplishments to antithesis baseborn acreage is two years to six years.
Because courts generally are aggravating to antithesis the rights of two innocents—the applicable buyer and the acceptable acceptance purchaser—many accept interpreted the approved limitation periods to run not from the date of the theft, but from the date of the analysis of the work’s actuality or location, says Thomas.
Gerstenblith says best courts now administer what is accepted as the due activity rule, which tolls the statute of limitations as continued as the applicable buyer has acclimated activity to acquisition the property.
A boyhood of states administer a analysis accepted to accusation actions, alive the accountability assimilate the aboriginal buyer or brood by active the statute of limitations from the time they should accept accepted of the theft.
New York recognizes a third variation, accepted as the appeal and abnegation rule, beneath which the statute of limitations doesn’t activate to run until the buyer or beneficiary has amid the baseborn acreage and accepted its acknowledgment from the affair in accepted possession. At the aforementioned time, however, New York applies the acknowledging aegis of laches in accusation accomplishments to antithesis baseborn art. In Solomon Guggenheim Foundation v. Lubell, 77 N.Y.2d 310 (1991), the cloister disqualified that, alike if the statute of limitations is tolled by one of the procedural rules and the accusation activity is advised timely, a actor may adjure the candid aegis of laches to prove that the claimant’s adjournment in advancing accretion biased the defendant.
Lower courts in New York accept activated Lubell in added cases. Thomas says these cases accentuate the accent of authoritative the best basal efforts to address thefts and locate missing artwork alike admitting accomplishing so ability not assume to be in the acknowledged absorption of acceptable acceptance purchasers.
“It is still the acute affair to do,” Thomas says. “Proper due activity can advice you abstain authoritative a acquirement that turns out to be baseborn art. It additionally may advice you afterwards because if you do accept a accusation affirmation adjoin you, you accept a bigger attempt of asserting a laches aegis by saying, ‘I did this and that, and the aboriginal buyer never fabricated any accomplishment to let the art apple apperceive [the] art was stolen.’ ”
In acceding of absolute law, claims to antithesis art looted during the Holocaust aren’t decidedly altered from added baseborn art cases—essentially, they all are accusation actions. But Holocaust claims generally are complicated by the basal facts, procedural issues and, in some cases, changing questions of law.
“I anticipate a lot of collectors now apprehend that if you get through all of the procedural arguments and get to the merits, you absolutely can appearance that these things were stolen,” Schoenberg says. “But accepting through the procedural allotment is adamantine because you can get bogged down.”
Schoenberg has represented several plaintiffs in acknowledged attempts to accost art looted from their families during the Holocaust, including Maria Altmann, who afresh recovered six paintings by Gustav Klimt—an affecting artisan in Vienna at the about-face of the 20th century—from the government of Austria. The paintings had belonged to her ancestors afore Apple War II.
Few Holocaust cases are accomplished afterwards able evidence, says Morton L. Amount of Cowan, Liebowitz & Latman in New York City, and they generally are adjourned to a adjustment with little added than a appeal letter. Amount represents an acreage gluttonous to antithesis added than 500 pieces of art taken during the Holocaust.
Procedural issues can aftermath abundant added alarming hurdles for claimants in Holocaust amends cases. Two aerial contour cases handled by Schoenberg allegorize some of the difficulties.
When negotiations for the acknowledgment of Femme en Blanc bankrupt down, for instance, Schoenberg activated the banned of how far the California courts were accommodating to extend their jurisdiction. Alike admitting the accepted buyer of the painting lived in Chicago, Schoenberg filed a accusation activity on account of the beneficiary of the aboriginal buyer in California because the painting was in the ascendancy of a Los Angeles arcade that was aggravating to advertise it. In addition, California in 2003 continued the statute of limitations to 2010 for accusation accomplishments for assertive types of acreage looted during the Holocaust that has angry up in museums and galleries. California’s approved filing aeon for accusation accomplishments commonly is three years from the time the painting’s abode become known.
A California Above Court’s cardinal that it did not accept administration over the painting because it was actuality captivated by the Los Angeles art arcade alone on a acting base was affirmed by a accompaniment appellate court. The parties acclimatized the case afore it could be heard by the California Supreme Court.
In Altmann’s case, Schoenberg sued the Austrian government in California afterwards Austrian courts appropriate a action band that was too big-ticket for Maria Altmann to obtain. The clothing airish the catechism of whether a adopted government could be sued in a accompaniment cloister beneath the U.S. Adopted Sovereign Immunities Act of 1976.
The case went all the way to the U.S. Supreme Court, which disqualified in Republic of Austria v. Altmann, 541 U.S. 677 (2004), that the California courts had administration over Maria Altmann’s clothing to antithesis the Klimt paintings. In its decision, the Supreme Cloister captivated that the California courts had administration beneath the Adopted Sovereign Immunities Act if the accusation was filed afterwards the act’s passage, alike admitting the basal facts giving acceleration to the case occurred afore the law was passed.
Gerstenblith says the aerial court’s cardinal in Altmann will accept far extensive implications for Holocaust amends claims, as able-bodied as added cases arising beneath the Adopted Sovereign Immunities Act.
But experts in the acreage say it can’t be affected that Holocaust amends cases will be absitively beneath U.S. law. Afore the altercation over Femme en Blanc settled, for instance, aegis attorneys Chapman and Rownd were able to altercate that French, not U.S., law should ascendancy the case. Because French law would admit acceptable acceptance appellation to acreage purchased from a thief, the beneficiary to the aboriginal buyer would accept had a weaker affirmation to the Picasso painting than he had beneath U.S. law.
The authoritative issues aren’t accessible to array out, says Schoenberg. “When art is taken in one place, baseborn in accession and awash in a third place, it gets complicated,” he says. Moreover, he says, “Some of these questions accept not been answered by courts in the United States.”
Whose history is it?
A growing agitation over who is advantaged to acquire antiquities and added “cultural property” from age-old cultures could in the continued run adumbrate added issues of art ownership. Increasingly, the agitation is pitting archaeologists and “source countries” adjoin museums, galleries, clandestine collectors and others in “market countries” on the catechism of what the able abode should be for cultural artifacts and antiquities.
“It absolutely comes bottomward to a agitation over who owns the past,” says Los Angeles advocate Thomas. “Say an article is 1,500 years old and is begin in present day Syria. Does it accord to Syria because it was begin aural its border, or does it accord to the apple because 500 years ago the breadth breadth it was begin was amid aural the borders of some added country and the ability represented by that article has died out? You additionally can apriorism that it belongs to no one.”
The agitation over cultural acreage has spawned some banderole avaricious cases during 2006. The Italian government, for instance, is activity advanced with its case of Marion True, the above antiquities babysitter at the J. Paul Getty Building in Los Angeles, on accuse that she conspired to boodle Italian antiquities. In an different matter, the Getty agreed to acknowledgment two antiquities to Greece that the Greeks maintained had been removed illegally from the country. In September, the Building of Fine Arts in Boston alternate 13 items of antique to Italy that the Italian government said had been looted.
Concerns about cultural acreage are not new. In 1970, a accord accepted as the UNESCO acceding was active by abounding nations to advice axis the breeze of age-old antiquities and artifacts from antecedent countries to bazaar nations like the United States. By that time, abounding antecedent countries already had anesthetized laws prohibiting any consign of cultural altar amid aural their borders.
The United States implemented the UNESCO acceding through the Cultural Acreage Implementation Act, but critics said the law had no teeth because it did not bar imports of actionable exported objects.
Because the acceding did not stop the barter of cultural antiquities and artifacts, abounding antecedent countries again anesthetized “found in the ground” laws declaring all such items to be civic property, which meant that any crooked abatement from a country would be advised annexation rather than aloof an actionable export.
Some 70 antecedent countries additionally accept the added armament of begin in the arena laws, which accomplish all such items the acreage of the nation state. The aftereffect of these laws is to accomplish the crooked abatement of cultural artifacts a theft, rather than aloof an actionable import.
In addition, 11 countries accept adjourned mutual agreements with the United States to bind the acceptation of assertive items into this country. But some of these agreements accept been criticized for actuality ever broad, says Thomas.
“You don’t accept to be an able on age-old cultures,” says Gerstenblith. “If [an object] is on the list, you accept to acquisition out if there is an consign authorization and on what date it larboard the country of origin.”
The seminal U.S. case in this area, according to Thomas, is United States v. McClain, 593 F.2d 658 (5th Cir. 1979), which complex several art smugglers who were accusable beneath the Civic Baseborn Acreage Act for conspiring to accord in Mexican artifacts. This case gave acceleration to the McClain doctrine, which says the United States will admit adopted declarations of buying or begin in the arena laws provided they are actual and activated domestically in the antecedent country.
The McClain article was underscored by the 2002 federal confidence of New York art banker Fred Schultz for conspiring to advertise Egyptian antiquities. Beneath Egypt’s begin in the arena law, ascendancy or barter of those items is actionable because they are accompaniment property. The Egyptian law was the base for Schultz’s case beneath the Civic Baseborn Acreage Act.
The United States additionally has acclimated civilian damage as an administration mechanism. In one case, the government bedeviled a $2 actor gold bowl that New York antiquity banker Michael Steinhardt was importing into the country. The access was upheld in United States v. Antique Bowl of Gold, 184 F.3rd 131 (2d Cir. 1999).
New York City advocate Carl R. Soller, who helped represent Steinhardt, maintains that the aftereffect reflects a web of laws and treaties that abort to accord with cultural artifacts in an candid manner.
One problem, says Soller, a accomplice at Cowan, Liebowitz & Latman, is that abounding of the adopted laws accept not been interpreted into English. And in abounding instances buying of antiquities has not been acutely accustomed beneath assets laws. Accession problem, he says, is that U.S. community regulations do not accept able procedures to awning the acknowledged access of antiquities.
Gerstenblith, however, says it ability be best for those in the art and cultural acreage barter to focus on how absolute laws are activated rather than altercate their merits. “Don’t get into the debate,” she says. “You aloof charge to apperceive what the law is.”
A Painting’s Tortured Path
Femme en Blanc has had an active history afflicted by the agitation of the 20th century.
1922 Pablo Picasso completes Femme en Blanc.
1926-27 Robert and Carlota Landsberg, a Jewish brace active in Berlin, acquirement Femme en Blanc.
1933 Adolf Hitler becomes adjudicator of Germany, bringing the Nazis to power.
1939 As Apple War II begins, Carlota Landsberg, now widowed, sends Femme en Blanc to Parisian art banker Justin Thannhauser for administration and flees Germany. Soon after, Thannhauser departs Paris.
1942 Thannhauser’s Paris home is looted by the Nazis.
1958 Thannhauser sends a letter to Landsberg cogent her Femme en Blanc was looted by the Nazis.
1975 James and Marilyn Alsdorf acquirement Femme en Blanc for $357,000 from a New York City art gallery.
2001 Marilyn Alsdorf, now widowed, seeks to advertise Femme en Blanc through a Los Angeles art dealer. At first, the painting does not arise on the database at the Art Loss Register.
2002 The Art Loss Annals informs Alsdorf that the painting was looted by the Nazis, but doesn’t initially analyze Carlota Landsberg as the aboriginal owner. Afterwards Landsberg’s buying is confirmed, her grandson Thomas Bennigson files a accusation adjoin Alsdorf in California Above Court.
2004 The California Cloister of Appeal affirms the above court’s cardinal that it did not accept administration to apprehend Bennigson’s suit. The California Supreme Cloister agrees to apprehend the case.
2005 Alsdorf pays Bennigson $6.5 actor in acknowledgment for bottomward his affirmation to Femme en Blanc.
2006 Alsdorf sells Femme en Blanc at an bearding amount to an bearding purchaser.
Jill Schachner Chanen, a lawyer, is a acknowledged diplomacy biographer for the ABA Journal.
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