Steve and Katie discuss the Nazis’ complicated and perverse relationship with fine art with attorney and author Nicholas O’Donnell. Nick is the author of the recent book, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, which tells the story of stolen and appropriated art in World War II Europe and how the U.S. legal system has been instrumental in dealing with claims for restitution decades later. Steve, Katie and Nick start with the historical landscape in 1930s Europe, and discuss some the most contentious and ongoing disputes.
Resources
https://www.sandw.com/professionals-Nicholas-ODonnell.html
https://www.amazon.com/Tragic-Fate-Ethics-Battle-Nazi-Looted/dp/1634257332
https://www.amazon.com/Rape-Europa-Europes-Treasures-Second/dp/0679756868
https://www.state.gov/p/eur/rt/hlcst/270431.htm
https://www.smithsonianmag.com/history/true-story-monuments-men-180949569/
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: And vice versa. The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Welcome back, everybody, to the second season of the Art Law Podcast. We’re very excited about the new season and looking forward to sharing many new topics in art law and for our episode this season, we’re going to be discussing what is a very important topic and one that we have waited to get to. It’s the topic of Nazi-looted Art and really the legal history of our collective attempts to identify and recover that art after the Second World War. We’re lucky to have with us today, an author and lawyer, Nick O’Donnell, who has just written a fantastic book on the subject and we’re going to spend a little longer than we normally do talking with Nick because the topic is so important. We’re going to beg your indulgence to stick with us a little bit longer than we normally take.
Katie Wilson-Milne: The Nazis in establishing The Third Reich in perpetrating the Holocaust were not just interested in purging their territory of non-aryan peoples but also purging it of non-aryan culture. And also appropriating by coercion or outright theft, the personal property of non-aryan, namely Jewish people. To this end, the Nazis looted directly or indirectly in an immense amount of valuable and important art. So much in fact and so devastating was the displacement and violence of the Holocaust, that efforts to reclaim Nazi-looted art for rightful heirs is a contemporary story and one is still working its way through the courts around the world, including in the United States.
Steve Schindler: We have with us today our friend and fellow art lawyer Nicholas O’ Donnell who has worked on some of the significant Nazi-looted art cases that we’re going to talk about and who has recently written an excellent book entitled, “A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art,” which details the history of Nazi-looted art and the legal battles that ensued in the post-war era, including today. Nick is a partner in the law firm of Sullivan & Worcester, and his practice focuses on complex litigation in art and museum law, with particular experience in the German speaking world. He’s also the editor of the Art Law Report, a terrific blog that provides timely updates and commentary on legal issues on the museum and visual arts communities. Thank you for being here today, Nick, to discuss your book.
Nicholas O’Donnell: Thank you for having me. Very glad to be here.
Steve Schindler: So I think we’d like to start with a general question and that really focuses on the connection between the Nazi regime and art and their peculiar relationship to it. And I just want to read a short quote from your book in the very first chapter and it says, “The programmatic overhaul of German society by the Nazis took many different forms. And while many do not associate art with the most prominent aspects of The Third Reich, this is a mistake, not merely because of the oft-repeated observation that Hitler was a failed painter. A short overview of some related Nazi initiatives is instructive in understanding the disputes that later arose regarding possession and ownership.” And then you take from there, sort of the arc of the Nazi program for appropriating art. But I’d like to just ask you to talk a little bit about the unusual relationship that the Nazis had with art and why they were so both obsessed with it and also bent on taking it?
Nicholas O’Donnell: So one of the things that is characteristic of the Nazi movement both before and after they took power in Germany is this fixation, this focus, on remaking society, sort of from the ground up. And you know as I say in the quote you just read not only Hitler but folks like Alfred Rosenberg and Joseph Goebbels and the folks who were really focused on the propaganda aspects and the sort of philosophical aspects – I hate to give it that much credit – but of the movement, art was among the things they thought about a great deal. And they clearly believed that to remake the society and remake the world in a way that they wanted, they had to address the way in which creative expression was performed and conducted and also who was allowed to display it and what was displayed. Now, some of that was real true believer stuff. Some of that was quite cynical, as I’m sure we’ll talk about. They weren’t blind to the sort of real world value of the works that they found so detestable and they exploited that quite successfully in an economic sense.
Steve Schindler: Now tell us a little bit about that.
Nicholas O’Donnell: So after a number of early initiatives in the regime that focused on the professions of the creation and criticism and teaching of art and effectively excluded Jews from all of those things by 1933, 1934. In 1937, we see what’s known as the degenerative art action which said a few things. First, it scoured German state museums, of which there were of course many and which had exemplary collections, and it took from those museums works of expressionists and modern art that the Nazis deemed “degenerate” and this is a hard category to actually sort of identify in a scholarly sense. But it really was critical of non-representational art or less realistic art. Obviously the things they favored were these hyper-realist sort of dull heroic figures of you know blood and soil and archetypes of the people and that sort of thing. But also with, you know what they viewed as attitudes they didn’t like and so you see painters like George Grosz and Otto Dix are criticized and attacked. They were German. They were not Jews. But they were critical of the conservative mindset that they saw as responsible for World War I and as the unrealistic response to World War I and all sorts of things that flow from that. So the Nazis really didn’t like that. And so they took from the German museums these works of art and they sold them. The most infamous example is what’s known as the Gallery Fisher Auction which was in Lucerne and this was an auction of a number of things that have been taken out of German museums and which were sold at international auction in neutral Switzerland. In addition, in a propaganda element before that sale and many others they assembled these degenerate works and they held an exhibition which they called The Degenerate Art Exhibition.
Steve Schindler: It was pretty popular as I recall.
Nicholas O’Donnell: It was extremely popular. You know, it’s an interesting…
Katie Wilson-Milne: In Germany, right?
Nicholas O’Donnell: In Germany. It’s an interesting thing to ponder and it was extremely well attended, and they hosted simultaneously an exhibition of approved German art, which was not as well attended. And I find this interesting because there were a number of scholars who take that as evidence that the German people sort of knew what was up and knew good art from bad art. I’m not as convinced, I mean, the spectacle of it is hard to unpack this far away in history, the idea that people went to appreciate it as opposed to jeer at it – is hard to, it’s hard to sort of unwind at this point.
Katie Wilson-Milne: Was it kind of a farewell tour? I mean was part of it that there were this big exhibition and the German government by that time was saying, “this is leaving Germany and we’re not going to have anymore but…”
Nicholas O’Donnell: It was a little more, it was a little different than that because if you look at the images from the exhibition, it’s not merely a show of these paintings. It’s a very multi-layered presentation which is used to mock the art itself. And a very, you know pop, ahead of its time style, the halls of the exhibition are very jumbled. The paintings are hung in a very disorganized way or seemingly disorganized way. And there is text all over the walls which is making fun of the art. It’s not sort of – especially when you think about Germany 1937, and German museums in many ways are still like, it’s very un-German museum way, when you think of the classic wall text and little brass labels and things like that. So it was really more as an offensive and a propaganda war which was to say this is what we are saving you from, so to speak. This is the society and the degenerate attitudes and the non-German people that want to destroy what we have, who we are – that kind of outlook. I hate to say that loud, but and so that’s why one of the reasons I’m sort of hesitant to read too much into the attendance of the exhibition, because people may have been receptive to that message. I mean they certainly —
Katie Wilson-Milne: So there are two things the Nazis seem to be doing at this time. One is focusing on the art itself and ridding Germany of that art, or German-conquered lands of that art. The other is dealing with the personal property of non-aryan people, namely the Jewish population. And these things are happening simultaneously?
Nicholas O’Donnell: Yes. So around the same time as the degenerate art exhibition, the government is organizing what becomes the law obliging Jews to declare their personal property. And this law is passed in April of 1938, right after the anschluss of Austria. And what it does is it just that, it obliges Jews to register and bring a list of everything they own to their local government office. This just accelerates the means by which the government can lean on them and pressure them to give it up. So 1938 is an important year on that issue in particular because the law comes out in April. It is enforced both in Germany and now in Austria, which at that point is technically part of Germany. People are filing these lists and they are not co-incidentally very quickly getting visits from government functionaries who express an interest in what they have. And so in 1938, you see a real spike in, you know illegitimate sales that are for nominal consideration, which is a point I want to get to in a second. But well, in advance of the sort of overt mob violence of Kristallnacht in November of that year. It’s a much more clinical, bureaucratic approach to these people. And the point I made a minute ago is, which really continues throughout Germany until the early 40s when most of the Jewish population has been murdered or deported and then in the occupied territories, is this pretense of erecting a transaction in which something is exchanged for the art. And so even in 1938, you see bills of sale, you see, you know, power of attorney signed by people in concentration camps extensively giving authority to sell their works of art or extensively getting something in exchange for their works of art.
Katie Wilson-Milne: That’s a really weird thing about Nazi-looted art and I don’t know if that’s something particularly German -that they couldn’t let go of the order of the, that their idea that there would be some order in record keeping. But why not just, why not just give up the farce and just take it and steal it, which of course they did in some circumstances.
Nicholas O’Donnell: They did, but I think it’s part of the continuum that begins from the very moment they take power, which is rather than merely use the power of the government, which by then they had all the way back in 1933 to simply round people up and either shoot them or take what they had or whatever else. They don’t do that. They go through this step-by-step process of, okay, now you can no longer practice this profession. Now, you can no longer practice this profession. Now, you can no longer go to that kind of store or that kind of park or whatever else. And they apply these incremental, you know, ostracizing of Jews from German social and economic life long before they actually organize physically removing people from the country. And that’s one of the great, I don’t know what the right word for it is, but that’s one of the great mysteries, I think, at the core of the Nazi story is why that was so, why it was so important for them to do it that way.
Steve Schindler: And it also, and you outlined this beautifully in your book when you talk about this specific cases for restitution that particularly started in the United States in the 1990s – that defenses to some of these cases really focus on the means by which the works were separated from their owners. And there is this continuum of sure, the stormtrooper marches in and takes your stuff and that people accepted that’s a form of looting. And then there is the sale under duress when Jews are trying to exit the country and they’re put under a lot of pressure to sell the works to make sure that there were no problems when they are exiting the country and then all the way on the other end there are Jews who had escaped Germany and where the works of art were perhaps in Switzerland. But under all of the circumstances, they still parted with their works for far less than fair market value and I think once you get to that point, you see some of the defensive measures in the litigations saying, well that’s not really looting, is it?
Nicholas O’Donnell: Right, and that later category, you describe is something that has come to be known as flight goods.
Katie Wilson-Milne: Can you talk about that a little more?
Nicholas O’Donnell: Sure. So the idea of flight goods is sort of at the end of the continuum that Steve described and that is that displaced persons, refugees, whomever who either had to leave their property took some property with them to a place where maybe they weren’t in as immediate physical peril as they had been and then sell it. Flight goods is a non-specific term that has come to mean sort of all those things to try to address in a historical sense, at a human level the obvious unfairness of those people’s situations. As Steve said that the question, and it’s sort of still untested in the U.S. litigation context, is whether that amounts to something that would undo the conveyance by the displaced person.
Katie Wilson-Milne: Alright, well let’s stick with the maybe middle case, which I think was quite common and we hear of a lot which is these coerced sales by the Nazis for people living in Germany who had these incredible art collections and there was a you know, a vibrant Jewish middle class and upper class in Germany at that time. So there were actually a good number of collections in Jewish hands. So, the Nazis come and they say, you know, I’m willing to pay you this. There is some amount of money that actually changes hands even if it’s not fair market value. Okay, and then what do they do with the art? What do the Nazis do with the art?
Nicholas O’Donnell: So the Nazis did a lot of different things with the art. Some of it, they just kept for themselves. I mean, a lot of the acquirers in those context were just opportunists who were high enough up in the local government, especially as the occupation expanded, you know, new people got appointed to oversee Czechoslovakia and France the Netherlands and everything else. So a whole class of hangers on and opportunists, you know, arrives on the scene and, with the benefit of these property inventory I described, it’s, you know, it’s really easy pickings for them to go see if there is anything they want. I think it’s interesting, not to get into sort of art criticism too much but you know, a lot of the cases that ended up as big splashy cases concerned 19th century Impressionist art, which was certainly very, very valuable in the 30s but it was not, it was nothing remotely as valuable as we think of it today. Because it was sort of the most recent, no longer in vogue style. So it was sort of, it wasn’t a bargain, but you see the point. So there was a lot of that. There was a lot of just sort of disorganized at the back end thievery. And then of course the big project both for occupied museums and for German museums and for Jewish collectors was Hitler’s museum, Hitler’s planned museum in Lince and just you though, thousands upon thousands of objects were swept up to be installed there. The museum as ever built. But that was a lot of it and you know, individual high level Nazis – Göring was the most infamous for this – He just liked having all kinds of, you know, prestigious, beautiful objects.
Katie Wilson-Milne: But isn’t there some weird irony in this that they, they are rejecting anything that’s, you know, not honoring the aryan race, any art form, any form of abstraction and yet they are taking all of this art that fits into that category that they want to reject from German culture?
Nicholas O’Donnell: There certainly is, but I think the dividing line is sort of the 20th century. I mean, obviously impressionism, you know, many Impressionist paintings depart from the classic, you know Salon art of the mid-19th century in a way that was scandalous in 1870 but by 1935, impressionism is, you know, sort of standard European cannon art to most people. But Göring also in particular, you know, he was really rapacious about old masters. So he really did with some consistency bore in on, you know, what he regarded as these sort of classic late Middle Ages, early Renaissance.
Katie Wilson-Milne: What happened to the Matisses and the Picassos in his collections, which obviously weren’t going to Hitler’s museum? Were the German officials like, “yeah I understand we don’t think this is the best example of German art but obviously this is great. We are gonna take it anyway and just…”
Nicholas O’Donnell: A lot of it then just traded hands among folks were who were willing to buy it, willing to pay for it. And so the initial acquirer becomes, you know, sort of the speculator who has something which is then quite valuable to oftentimes German middle class private buyers. One of the real challenges that I often face or that often comes up in these cases is, you have a known owner in the early 30s. You have some pretty obvious evidence of their dire circumstances and then you see in the hands of someone in the late 30s who would have been, who you have reason to believe would be quite comfortable with the status quo under the Nazi regime and the bedeviling question is often how you deal with that uncertainty.
Katie Wilson-Milne: And then it’s probably been, it could have been in that family then for many generations afterwards.
Nicholas O’Donnell: Right, and that’s usually how, that’s usually how it comes to the place where it’s found today that, that family or person has it for generation or two and then they either give it to the museum or they sell it. You see a huge number of sales – this is the other thing that is a real issue in the legal sense. You see a huge number of sales in Switzerland in the 1950s, a place that honors good faith acquisition for value such that if Swiss laws apply to those sales, even a later claimant, that, you know the true owner, the true owner’s heirs may be out of luck when they come forward because that, if that sale in Switzerland is upheld as acquired by someone with good faith without knowledge that it was stolen, then that essentially establishes good title under Swiss law and restarts the clock.
Katie Wilson-Milne: Right, unlike in the United States where most jurisdictions in the United States where that’s true except that you cannot take good title if an object was stolen. So, I guess, we should also say that this vast coercion mechanism and take theft at large is a small part of a large property taking that includes taking people’s homes and their businesses and all kinds of personal property. So we’re giving this as an example because it’s a fascinating aspect of The Third Reich. But it was not unique. It was part of a broader scheme.
Nicholas O’Donnell: No, and it was down to levels that you know, are surprising when you think about it. I mean, the one of the biggest initiatives in occupied France was the so-called “Möbel-Aktion” which was the furniture action. Just this completely vast enterprise to take all of French Jew’s furniture.
Katie Wilson-Milne: And what happened with that?
Nicholas O’Donnell: They sold it. Reused it. It was just, you know, it was just right down to the studs.
Steve Schindler: Right. And I guess the thing about art is that it’s portable, it’s easy portable and it’s valuable and it’s survived up until this day and there is a vibrant market for it.
Katie Wilson-Milne: Whereas like a share certificate would not have survived. So, can we quantify the loss of art or the theft of art? Do we have any sense of how much was taken from its original owners?
Nicholas O’Donnell: The number of objects is in the hundreds of thousands. Beyond that, I don’t have a real pin on the quantity. But it’s in that order of magnitude.
Steve Schindler: So maybe, let’s talk a little bit about what happened after the war and you talk in your book about sort of a pendulum that starts with restitution efforts by the United States government particularly and the allies after the war and then that arcs until resurgence of litigation that you then outline in the 1990s. But what happened after the war?
Katie Wilson-Milne: Yeah, well let’s start with the sort of immediate postwar period?
Nicholas O’Donnell: Sure. So even before the war ended, there is something known as the Inter-Ally Declaration of 1943 which is now known as the London Declaration because it happened in London. And in it, the allies – and this is very interesting statement – because this is in 1943, you know when you think about the context, the Battle of Stalingrad has already happened, so the tide has turned but the war is far, far from over. And the outcome is by no means certain and even the outcome in one sense that the Germans seem unlikely to win the way the Germans want to win, what else that might mean is, you know, a lot of, lot of suffering still to come. But nonetheless, the allies identified the looting of art as something that the Nazis had been doing and it’s something that will have to be addressed.
Steve Schindler: Isn’t that something that George Clooney and Matt Damon were doing at some point. I know that.
Nicholas O’Donnell: So around the same time, the Monuments Fine Arts and Archives Division is created. These are known as the “monuments men” and…
Katie Wilson-Milne: It’s the division of…?
Nicholas O’Donnell: It’s a division of the U.S. Army, and those men and some women while the war is going on as the front advances are trying in certain circumstances to save physically works of art that are in the war zones.
Steve Schindler: Portrayed by a not very good movie in 2014.
Nicholas O’Donnell: Indeed.
Nicholas O’Donnell: When the war ends, the monuments men, the MFA and the monuments men and women’s work shifts to what to do with what they found. So the biggest repositories are at that point in Austria and near Wiesbaden, where the works that they had been planning to install in the Hitler museum that I described are basically in storage. That they had been in museums around Germany and as the war got worse and worse and worse, the Germans sort of moved them further away from the front, and the furthest place from the front was the salt mines in Austria. So what the monuments men then set about to do is try to figure out what to do with these tens and tens of thousands of objects. And the decisions that the allies make is what’s become known as a policy of external restitution. And that is they will try to determine which countries these objects came from and they will return the objects to the governments of those countries to then sort of take it the final stretch.
Katie Wilson-Milne: Is that just the U.S. position or is it some sort of general allied agreement?
Nicholas O’Donnell: It’s a general allied agreement that quickly becomes a western allied agreement because as this is happening and you know, it’s happening in 1945, 1946, 1947, the Cold War is already starting to ramp up pretty quickly and the Americans and the Brits and the French are the ones doing most of this because the Soviets policy of external restitution was to take everything they can get their hands on externally from Germany. So they didn’t really care to play by the western allies rules. They had a certain approach they intended to take and they did and there is a lot of those things that are still in Russia. So the monuments men set up these collecting points. They move things out of the salt mines. They start to organize and catalogue them. They spend a huge amount of time interviewing the Germans who had been involved in the Lince museum project in particular but also just others whom they had reasons to believe were in the art trade, Hildebrand Gurlitt of recent fame, whose son died after the collection was found in his Munich apartment, is interviewed. Folks like him who just were in the art trade in and around the occupied territories. So one thing – just speaking of Gurlitt, just to go back to the degenerate art idea is not only did the Nazi government take the art, they deemed degenerate off the walls in museum but they then monopolyized it, the trade of it in these four art dealers. And so that, you know, just spiked the price from which they reaped the benefits and Hildebrand Gurlitt was one of those four dealers. So the monuments men undertake this really incredible effort to trace the provenance of at least recently to where these things came from and they return them to those governments. But that’s where it stops from the standpoint of the occupying allies.
Steve Schindler: Which is to say that there is no effort to find individuals whose work was taken. It’s sufficient from at least the U.S. perspective and the allied perspective to take the art, put it back into the country where it came from, and then say, “okay you guys figure it out.”
Nicholas O’Donnell: And not terribly surprisingly that goes in a lot of different directions in a lot of different countries.
Katie Wilson-Milne: And just to pause for a second. This is only the art that was still in Nazi hands. There is no ability or effort at this time to go out into the marketplace and find owners, current owners or good faith or not purchasers of art that was taken.
Nicholas O’Donnell: That’s right. So this goes very differently in different places and you know in France there are some successful finding of heirs, but obviously the principle problem is a lot of the people from who it had been taken had been murdered. Many more of them who hadn’t been murdered had left the countries that they were from and didn’t care to return and so they weren’t necessarily around to be found. But so in France, you know, you see some successful restitutions and then a whole group of things that the effort at the time can’t identify the owners of is about 2,000 objects and they just sit and many of them still sit in the possession of French government. In the Netherlands, a much more organized regime of restitution laws is put in place. Not just for art of course, but for all kinds of property. You mentioned share certificates and one of the things again that Göring and a lot of folks like him did a lot of was – they wouldn’t, they wouldn’t just go into an enterprise and say, I want all of your, you know, inventory. They would hold a board meeting in which they, Göring or others, became the sole shareholders. So the Dutch had different laws depending on when it had “enemy property” and some things that were Dutch property actually became “enemy property” because the Germans had acquired them and so it gets very complicated. And Germany also has a number of laws and a lot of these European countries pass a series of laws under which you can make claims.
Katie Wilson-Milne: And is a list of stuff they have to figure out, is it public? The list of objects?
Nicholas O’Donnell: No, it’s really, it’s in some, there is the opportunity you do see a fair amount of people claiming against the people who have the art or the property that they shouldn’t and some of those true owners get those things back, you know, in Austria and what you see of course is that countries’ relationship to their occupation has a lot to do with how this goes. So in France, there is an initial effort and then everybody really just doesn’t want to talk about it. The Netherlands is a little more robust, I think because there isn’t this sense of guilt because they just sort of want to get to the bottom of it and be done with it. Austria directs this myth of the first victim immediately and starts bemoaning their own fate. And in Austria in particular – this is something that drives a lot of later restitution cases – they pass a pretty broad restitution law which voids a whole category of sales between prosecuted people and acquirers. But it also imposes an export ban on what it deems culturally significant property. So there are many cases in which Jews who did survive, who did come back to claim their property in Austria were reawarded title to it but were then forbidden from taking it out of the country, a country they had no interest in living in ever again. So that complicates things. And one of the things that’s informing this is you know, especially in the late 40s, the allies are acting under a series of occupation laws that govern all manner of life in Germany and Austria and one of them concerns art and it’s called Military Government Law Number 59 and it directs this presumption of invalidity over sales in places where the seller was a prosecuted person. So it’s, if you’re a Jew in Germany after January 30th, 1933, anything you sold is presumptively suspect.
Katie Wilson-Milne: Bill of sale or not.
Nicholas O’Donnell: Right. And it doesn’t mean that it’s void. It doesn’t mean that the sale didn’t happen. It means that the starting point unlike the traditional civil claim where if I believe you have my property, I bear the burden of proof to show that you didn’t acquire good title to it.
Katie Wilson-Milne: And in what form does this presumption operate? The German court system, administrative state, like what?
Nicholas O’Donnell: There, it’s, there is still a lot of debate about the extent of its scope. In the first instance, there are claims that can be brought to the military government and it is applied there. But it also influences these other countries restitution laws. So Austria’s restitution law, 1946 to 1947 really mirrors that presumption in Military Government Law Number 59 and Austria is still under the occupation of all four victorious allies until 1955. So there is this back and forth between some pretty nuanced treatment of the issue and this sort of encroaching reality of these countries getting back to business and not really wanting to talk about it anymore. Not a whole lot is happening in the United States at this point because not much of this art is in the United States yet.
Katie Wilson-Milne: But the people are starting…
Nicholas O’Donnell: The people are starting to and so you know, there is a lot of art, especially here in New York that came to New York in the late 30s before the United States got into the war, via the degenerate art action. But it’s not a looted art problem because the German government had valid title to those paintings. The German government had the authority to sell them and they did sell them. So there is a lot of paintings around with interesting stories but it’s not so much a question of restitution and…
Katie Wilson-Milne: And that doesn’t fall into the presumption of invalidity under…?
Nicholas O’Donnell: Because the seller was the Nazi government.
Katie Wilson-Milne: I see. Well, that’s a problematic exception.
Nicholas O’Donnell: Well, it is and it’s just like I said as a follower of the topic, it’s an interesting fact of, a sort of an uncomfortable fact, of a lot of paintings that museums don’t necessarily want to focus on.
Steve Schindler: I mean, that seems more of a sort of art historical question and legal question because there is no possibility that those works are going back to the German government.
Nicholas O’Donnell: Right. Correct.
Katie Wilson-Milne: So most of this post-war excitement about trying to figure out what to do is in the late 40s.
Nicholas O’Donnell: Right.
Katie Wilson-Milne: And then it starts to quiet down.
Nicholas O’Donnell: So the monuments men essentially come home in the late 40s. Things have been returned to their countries of origin. From there, many are restituted, many are not and then in the 50s, I think the key development of the 50s is a lot of things that had ended up in the hands of someone else then the person who owned it in 1935 or so, in the ordinary course these things start to get back into the art market and this is where the question of sales within continental Europe becomes so important, because there are a number of cases that I talk about that are coming up again now, even since I published the book, where you see a collection brought to a gallery in Switzerland in 1954. The person has a seemingly plausible story about where they got it from. The works are sold. A person buys it who is either now dead or no one really knows how clearly they understood the situation and then we have the sort of recommencement of good title at that point. But there aren’t a lot of civil disputes either here or in, you know, over there.
Katie Wilson-Milne: These people in their 50s aren’t paying attention to what’s being sold and can’t say, “wait a second, that was my painting?”
Nicholas O’Donnell: It’s, I think, it’s an information resource challenge for one. I mean the folks who are the true owners at that point are disbursed all over the place. The war is still relatively recent event for them. The Holocaust is still a relatively recent event, and there is no means by which things can be tracked, you know, with much efficiency. You know, you’re talking in a lot of cases, a lot of these cases where you, where there is a sale in the 50s and somewhere in Europe. You know, it’s gallery so and so in Bern and it’s a guy with a ledger book. You know, there is no, there is no access to that information.
Steve Schindler: There is no internet. There is no database.
Nicholas O’Donnell: And so these things are happening really with no way for anyone to know what’s going on.
Steve Schindler: People are rebuilding their lives, you know, having survived the Holocaust and maybe their art collection is not the first thing on their minds.
Nicholas O’Donnell: Right. So and then from the standpoint of civil disputes, you know, there are few notable ones that pop up in the 60s and 70s and 80s but they pretty limited. I think that’s mostly a function in, at least in my view, of just the physical disbursement of the artwork at that point as opposed to the people. Just not enough of these things have ended up on this side of the ocean for there to be that many cases, when you factor in all the other ways that a case might never happen because of all the reasons the claimant might not know enough to bring it.
Katie Wilson-Milne: And then Europe is the issue that there aren’t issues that there aren’t that many Jews left in Europe and…
Nicholas O’Donnell: I think that’s part of it.
Katie Wilson-Milne: And that the way that European governments dealt with this issue was more administrative?
Nicholas O’Donnell: I think it’s all of those things and it’s an understanding that things just are going to work a certain way. We don’t have to dive into all the history too clearly. But, You know the genesis of the Portrait of Wally case is that Lea Bondi, who was a Viennese dealer, the victim of one of these classic scenarios of somebody shows up and says, “that’s a real nice painting you have. I would sure like to take it off your hands” of the Portrait of Wally, which was a companion to a Self-Portrait of Schiele. She survives. She gets to London after the war. And she reaches out to a man named Rudolf Leopold who was a prominent scholar of Austrian art and says, to Leopold, “I haven’t been able to figure out what happened to Wally. Do you know anything about it?” He says, “yes, it’s in the National Gallery of Austria” and she says, “do you think, I can get it back?” And he says, “no, no there is no way to, they would ever do that.” Now, he then goes right back to the Vienna and acquires it or himself.
Steve Schindler: This was the worst case of double crossing.
Nicholas O’Donnell: But people like Leopold are not so common, I guess. He’s a pretty interesting historical figure. But this is, I’m sure, the perspective that most survivors expected from a place they’ve come from. These are the countries that had just chased them out of their own homes and they were hardly expecting a whole lot of fair treatment, new laws or otherwise. A lot of the same people were still there and so, you know, to Steve’s point, I think, it’s a combination of all these things plus some degree of people cope with this kind of trauma in different ways and one of them is to just move on.
Katie Wilson-Milne: You’re write in your book, and this may take us to sort of when things become more visible again: “After the war, the world is putting itself back together. But was becoming entrenched in the new Cold War. It was not until the collapse of the Soviet Union and the breathing room created by that development of world affairs, which afforded the various countries to look backwards with fresh eyes and so it began a comprehensive effort to assess how stolen art ought to be restituted or not.” So actually, I just finished watching The Americans last night, so this is like very fresh in my mind. But what was it about the Cold War? I mean, why, how did that factor in? It does seem to line up timewise that that would have had to have something to do with this sort of low in restitution of individual claims until after the, you know, the fall of the wall and the Soviet Union.
Nicholas O’Donnell: So it’s hard to say for sure how art sort of fell off the short list of Nazi historical topics, because it was certainly well known at the time, as I said the allies were talking about it even before the war ended. But you know, we look back to the late Cold War. You though, Germany occupies a unique place in that conflict. You’ve got East Germany, you’ve got West Germany. You’ve got the symbolic struggle over Berlin and you know, what if somebody crosses the wrong line and what, how are the U.S. or the Soviet Union going to react to that. And as that happens and particularly, you know, later in the conflict West Germany of course is a critical ally of the United States in its confrontation with the Soviet Union and there is no shortage of criticism of you know, Nazi behavior but I do think you see this sort of creeping distinction between Nazism and Germany society and there is a recurring approach where the Germans and the Nazis are distinguished from each other. When you read a lot of military history of the 60s and 70s, even British military history. Certainly no love lost there. You read about the exemplary skill and tactics of the German army and you read histories where you know, the writer will bend over backwards to distinguish the Wehrmacht, the traditional German army from the SS divisions and their conduct and their, you know, murder and destruction. And those distinctions really aren’t as bright as that would suggest. And I think what happens when the Cold War ends is everybody is thinking about everything. Everybody just sort of thinking what does the world mean now? Who is who and what is this mean? And where do we go from here? And it just prompts a lot of, I think, reimagining and rethinking about things that have been taken for granted.
Katie Wilson-Milne: As part of it too that, there was actually information behind the iron curtain that was important because you mentioned earlier that the Soviets were not that interested in restituting property. They were interested in taking it. So they just, they took a bunch of information and property and people and pulled it behind the iron curtain which was not really accessible for research.
Nicholas O’Donnell: Right, I think that is a lot of it. But equally, I think some of it is just refocusing, I mean, you know, I think the most influential book on this topic of the 90s is The Rape of Europa which is about France, you know, a place where the resources and the information such as it was, you know, were sort of sitting in plain sight the whole time. It just took someone to take a look at it again and encapsulate it in such a skillful way.
Katie Wilson-Milne: So what happens in the 90s that sorts of reshifts attention and how does the – you know, this is where we really start focusing on the U.S. – U.S. takes a very central role in this both in terms of its, you know governmental administrative efforts but also in terms of litigation.
Nicholas O’Donnell: So what happens is, you know in the kind of the mid-90s after Lynn Nicholas’s book for a few years, people just start talking about it a lot more. They are, you know, people are writing scholarly articles more about all kinds of these topics to do with German history and the subject of looted art is coming up much, much more. In the late 90s, a couple of very important things happen. And among that are the questions about things like insurance policies that have never been paid to Holocaust victims where the insurers had essentially, you know kept the proceeds and made no effort to find the survivors, Swiss bank accounts that had either been left in place with no effort to find the heirs or had been absorbed and redistributed, gold in Swiss banks, all kinds of things. And so there is a lot of gathering momentum and there is supposed to be some litigation against German and Austrian banks in the 90s about their conduct and about assets they had that can be traced to Holocaust victims. U.S. museums start to get a little concerned about where this is going to leave them in terms of objects that might be traced to this period. The Association of Art Museum Directors convenes a task force in 1997 to examine the issue and they issue a report in early 1998, which I think is an extremely interesting document – it still has aged very well – that made this sort of policy pronouncement about finding out the history of museums’ own collections. That instructs its members, these members are directors. They are not the institutions themselves. But it directs its members to sort of go forth and investigate and when questions arise, when problems arise, how to handle them, how to treat claimants and sort of suggestion about how to handle difficult situations.
Katie Wilson-Milne: And eventually every important American museum is part of the AAMD.
Nicholas O’Donnell: Correct.
Steve Schindler: And then to publicize their results and to make them available and now of course the internet is a growing thing and it’s more possible to have databases that are accessible.
Nicholas O’Donnell: Right, so that happens in early 1998 and then in late 1998 the U.S. state department holds the Washington Conference on Nazi-Confiscated Assets. And this is a broad category, again, to do with all kinds of things, not merely to do with art, and discussion of art in the conduct of the conference turns out to be bit of an afterthought. It sort of comes up late in the event. But it results in the pronunciation of what are now know as the Washington Principles on Nazi-Confiscated Art which are, you know, largely aspirational. Signatories to the Washington Principles are foreign nations. It’s not a treaty. It was never ratified by our senate.
Katie Wilson-Milne: So who’s at this conference?
Nicholas O’Donnell: So it’s most of the countries of western Europe and United States, you know, I think there are 44 countries total. And of you know the phrase that comes out the Washington Principle is this urging to reach fair and just solutions, which was a big step because, you know, at that point in 1998, in most of the countries of Europe, claims for art stolen in the Holocaust during the war were categorically time barred. Most European countries on personal properties like this have longer statutes of limitations than we do but they don’t allow for exceptions like discovery or tolling or anything. The United States, as had already been established, you know the discovery of the ability to make a claim, courts were willing to recognize that as extended statute of limitations under the right circumstances and at that point and until recently, the rule in New York for, well, it’s still a rule for stolen property but it still applies to stolen art was that until the true owner makes demand and the possessor refuses, the statute of limitations didn’t begin to run in New York. So the fair and just solutions principle is an attempt to sort of bridge the gap between very different legal perspectives in different countries. And then the question becomes sort of what’s going to become of this. What comes out of it is that a few of the participants – and it’s important to remember even notwithstanding the transfers I talked about in the 50s and later – most of the art that’s displaced is still assumed to be somewhere within Europe and often within European museums which run from massive state, you know, internationally renowned museums all the way down to your you know, city and regional museums that are much smaller. So a handful of the countries and no more make some effort to try to fashion a process outside of just sort of shrugging your shoulders, they create various levels of advisory panels to make recommendations to the national governments. Most European countries laws forbid the deaccessioning of art from national collections for any reason and so an exception had to be made legally to even permit the idea to be considered.
Katie Wilson-Milne: So by this point in 1998, almost all of the postwar restitution processes and agencies have shut down? That’s just not going on anywhere?
Nicholas O’Donnell: Correct. Most of those were finished by the mid-50s.
Katie Wilson-Milne: So there is, there is this kind of just really the sort of global acknowledgment that the solution did not occur after the war.
Nicholas O’Donnell: Right. And it’s funny. I mean, I wasn’t there but from what I’ve been able to glean from folks I’ve spoken to, it did really kind of come up organically later in the conference. A number of people kind of say, “well wait a minute. What about the art? You know, that’s never really been dealt with.” And there was, you know, I’m sure there was some resistance to that in some quarters but it got enough momentum and it you know, resulted in these principles.
Katie Wilson-Milne: So Germany, you know, established some bodies to try to deal with this.
Nicholas O’Donnell: So Germany, Austria, Netherlands, France and the United Kingdom at various points in the late 90s, early oughts, create these various commissions.
Steve Schindler: What about the U.S.?
Nicholas O’Donnell: The U.S. does not and you know from the U.S. perspective, it’s a tricky question in terms of what to do because there isn’t really a problem with Nazi-looted art in the hands of the U.S. government. And that’s the challenge for the European governments and the European panels is they are addressing artworks in the possession of national governments as to which there is a claim for looted art and what to do about it.
Steve Schindler: And their museum generally are national museums, as opposed to ours.
Nicholas O’Donnell: Right, and, right the proportion of art there as opposed to here, that’s in public versus private hands is, you know, inverse. And so these, you know, these panels commence at various points with various degrees of success. I certainly from experience and from writing the book contrast the examples of Austria and Germany in particular because the Austrian panel starts first. The first case it hears is Maria Altman’s claim, which is a total fiasco. The Altman case, for those who aren’t familiar, essentially boiled down to Altman was a resident of Vienna. Her husband is intermittently arrested, set to Dachau, he comes back and forth a couple of times. Her uncle was a man named Ferdinand Bloch-Bauer who was a very successful sugar industrialist and the widower of his late wife Adele Bloch-Bauer, who had been the subject of a portrait by Klimt. Adele died in 1925, and she left the painting to her husband. And in her will, she had asked her husband to leave the painting to the Austrian National Gallery, when he died. When Maria Altman approached the national government about the painting, they said, “no, no, you have to understand, it’s ours, because Adele left it to us in her will.” Altman didn’t have the will, because Austria had the will and Austria just wasn’t telling the truth about what the will said. And the will, for those less familiar, language in a will that asks someone else to do something —
Katie Wilson-Milne: Not so much.
Nicholas O’Donnell: Is not binding on that person. But nonetheless, the Austrian panel essentially accepts this excuse at face value and says, “well, it seems pretty clear that Adele left the painting to Austria, so what do you want us to do about that.” And they are criticized for that and a number of other things. Austria actually amends its restitution law in 2009. This is after a few other things, but actually to address the export ban situation I described earlier. And what you’ve seen since then – and there are still plenty of critics – but what you see since then, and I’ve read dozens and dozens of these opinions from the Austrian panel is just a much more nuanced approach to these questions of uncertainty. So if you have at time point one: object is in the hands of a Jewish owner, time point two: we don’t know, time point three: Jewish owner has been murdered or had to leave quickly, time point four: it’s in the hands of a prominent Nazi, we’re not going to scratch our heads too much and wonder about what happened, unless someone tells us that it didn’t happen because we kind of know what happened. The German panel by contrast is kind of gone in the opposite direction and started taking a much more exacting demand for proof of coercion and theft that I think has been somewhat counterproductive and I think it’s born out of, I mean, a vocal critic, there is no secret here. I’m a litigant against the German government at the moment. But taking my perspective out of it for a second, what you see is the German advisory panel has essentially ground to a halt. There haven’t been any cases decided in almost two years because folks just aren’t going to it anymore. They don’t, I think, feel like it’s worth the trouble. The Dutch panel, I think has been better regarded. Certainly, there are some critics, but it’s regarded as a little more business-like. It allows for consideration of the perspective of the museum and sort of the public benefit of having something still in the public view and then the U.K. panel again going back to sort of how these things factor in. U.K. obviously has no culpability for the Holocaust but the opposite. And I think people feel a lot better that there isn’t some sort of creeping agenda going on in there. It’s just a little more face value and the number of things in British public hands is just fewer. Because it’s not…not where they ended up.
Katie Wilson-Milne: So how many, how is it that – we have a lot of the property in Europe – the culpable governments and regimes in Europe to sort of figure out how to repatriate this art? How do so many of the fights end up in the United States?
Nicholas O’Donnell: So the most obvious answer is that a lot of the heirs are, by the 90s, are Americans. So the cases, you see in the 90s and the oughts in this decade after generation or two, the surviving families’ descendants and heirs and claimants just are U.S. citizens. And so they are looking for an access point to a dispute resolution mechanism and you know, people usually turn to the one that’s closest to them. It’s also no doubt related to a concern about the treatment they will get or the fairness they’ll get in a country they don’t understand or country they think is responsible. And I think that’s…
Katie Wilson-Milne: Is part of it also that the way the art market has shifted to be much more focused in New York specifically? That more of the art has traded to America or is that not part of it?
Nicholas O’Donnell: I think that is probably part of it. I think – I’m actually someone who is complimentary of the role the auction houses have played in this issue in the last 30 years because the, I mean, obviously the prominence of New York is undeniable more and more so. And the auction houses have played an important role in sort of scrubbing the information that accompanies these objects and, you know, the folks who are doing it now and the actual people who are doing it now are I think are diligent and believe in the issue. Whether you want to take my word for or not, the institutions obviously have an interest in as little disruption as possible in the title of things that go to auction. It’s not in their interest to do that as a corporation. Now the issue having been raised it’s helpful to them and then the right thing to do is to cast more of a spotlight on it.
Steve Schindler: And there are also available now is there having been in the past, you know, fairly sophisticated and advanced registries of stolen art and it’s relatively easy and routine for an auction house and really any responsible gallery to check those registries before engaging in a sale.
Katie Wilson-Milne: And when did those online databases really become accessible?
Nicholas O’Donnell: So IFAR starts, I think in the late 80s.
Steve Schindler: And what is IFAR?
Nicholas O’Donnell: IFAR is the International Foundation for Art Research and IFAR, I think in the late 80s starts what is essentially an academic project to start to compile the known information about looted collections. So just by way of anecdote, I worked at a museum in the late 90s when the AAMD guidelines came out and one of my jobs was to do our provenance research on this topic and even with IFAR, even with the art loss register, which I’ll describe in a second, a lot of that information still consisted a photocopies of reports from the 40s. And so IFAR’s project starts to compile these things in one place where you can search them. IFAR then in collaboration with a couple of the auction houses helps launch the art loss register which is a for-profit endeavor which has been around since, which is database against which objects can be checked, in which sort of continually aggregates information.
Katie Wilson-Milne: And that’s facilitating claims?
Nicholas O’Donnell: Yes. Because in a way that wouldn’t have happened in 1985. Somebody consigns an object to a major auction house or art dealer that follows these practices. They check the art loss register and they see that there is notice of an issue or of a claim or some connection to a problematic collection and then depending on the seller or the consignee, they do something about it. They publicize it or they tell the seller, you got a problem and then it kind of goes from there. But it’s, you know, that has really changed. One example that I thought was interesting this year. There was a painting that was sold at Christie’s this spring that had once belonged to Liz Taylor. It was a Van Gogh. And it was the subject of a litigation in California in the early oughts which Liz Taylor won because she convinced the district court in California that the family should have known where the painting was when it was put up for sale at Sotheby’s in 1990. It was actually put up but it didn’t sell but she argued and persuaded the court that was noticed to the world essentially of where the painting was and thus the statute of limitation should have begun to run then. You know, in practical terms, I think it’s a debatable point as to that analysis in the Liz Taylor case. But of course by the time it was reauctioned this spring, there was no question because the claim had been resolved. Right, the final judgment had been entered. Title was found to reside in Liz Taylor and that was the end of it. You know, I think if that same scenario happened today, it would go very differently because families would be more likely to find it.
Steve Schindler: I want to talk about some of the most important litigations in the 1990s, particularly those that involved museums. But before that I think it’s just worth just talking very briefly because we’re all litigators in this room. How difficult is it to bring one of these claims, many, many years after the looting occurred, where you have records and in Europe, you have works of arts located elsewhere, you have defendants – ? How – it’s amazing to me, how some of these claims have persevere in the face of what are very, very difficult circumstances.
Katie Wilson-Milne: Yeah, can you talk about what the main legal challenges are in bringing claims this old? But also if it fits in sort of how relatively friendly the U.S. is versus litigating in other jurisdictions?
Nicholas O’Donnell: So the answer, to answer your question, it is very difficult. No, but you know, the principal challenge is that people face are time limitations, over the claim itself and then oftentimes jurisdiction over the defendant. I’ll take those in turn and they’ve changed. As we discussed, these things all happened very, very long ago. In most U.S. courts, claims for personal property have statutes of limitations something in the order of three years. But those can be extended if the claimant couldn’t know with the exercise of reasonable diligence where the property was or who the defendant should be. So, many of the early cases in the 90s and the oughts focused on and often went against the claimant about the question of whether they could have known where it was or whether it was sufficiently public to know and therefore to bring a claim within those three years. That’s why Liz Taylor won. That’s why a number of other cases, Detroit Institute of Arts, the Toledo Museum, among many others won their claims because they persuaded the court that this has been in a public place for long enough that a person who believed they owned it, would have found it and they should have sued us if they thought they were right.
Steve Schindler: I thought museums were supposed to be bound by these principles and so when you mentioned the Detroit Institute of Art and the Toledo Museum. And those are cases involving the Nathan heirs, right? And those are also cases where the museums were quite aggressive in pursuing sort of technical claims in order to hold on to some important works.
Nicholas O’Donnell: Yes, and that was and is still controversial, the decision to do that. I mean the Nathan claims were more on the spectrum of flight goods probably than some of these other scenarios. But the decision to sort of take the initiative like that was very controversial. And you know, that’s where most of the litigation focused by contrast an example of which I’m, you know, more complimentary in the book is another case in which the museum actually sued the claimant was the Museum of Fine Arts in Boston sued the heir to an Austrian man Oscar Rykiel, who had lost a large part of his collection but with the MFA did, I think to their great credit was spend a lot of time on researching the history of the collection. Trying to find out what evidence there might be about the disposition of the paintings and establish, I think to my satisfaction – not that it matters – but convincingly I think that there is a key distinction between the painting at issue and that lawsuit and other paintings that had clearly been confiscated from Rykiel and it did so by really pouring through records here and in Europe and finding correspondence from the collectors’ children and all kinds of things. That was, I guess the reason, I give the MFA credit for that was that the claimant made demand on the MFA at certain point through her lawyer and some you know, correspondence with back and forth as it often does but more than three years then elapsed between the lawyers demand and the next step. And so regardless of the rules we talk about in terms of who could have known what in the 40s or 50s or whatever clearly the point to which the lawyers says, “that’s mine give it back” you know, where it is and the clock starts ticking. So the MFA could have won that case with like a three page motion. Attaching the letter of date X more than three years ago. But what it did, I think, you know, admirably consistent with these principles was go to the effort of showing why it took that shortcut as opposed to just saying, we can win, so we’re going home. It was, “we really think, we own this because we really think, this man sold it, you know, because he wanted to.”
Katie Wilson-Milne: I mean, there are so many things we talk about on this podcast, there are these two parallel regimes. One is the legal regime and one is the ethical and they are not the same here.
Nicholas O’Donnell: They are not.
Katie Wilson-Milne: I mean, that’s the issue that Steve, you know raises is that the museums might be well within their legal rights to contest a lot of these claims but that perhaps not ethically. I don’t know if you had more to say about sort of the legal challenges in bringing these claims here…?
Nicholas O’Donnell: So to finish that thought and then I think the ethical situation is clearly one I’m very interested in. The other big challenge is jurisdiction when the artwork or the defendant is outside the United States. So clearly, it’s not hard to sue the Museum of Fine Arts in Boston in terms of the jurisdiction, the museum is physically present in Massachusetts. But if you have a collection that’s in Berlin or a collection that’s in Budapest, you have to find a way to acquire jurisdiction over somebody who is not physically in the United States and there the litigation has centered around something called the Foreign Sovereign Immunities Act. Sovereign immunity is a general principle that the sovereign dating back you know, medieval times, now meaning the state or the country, can’t be sued without its consent. And that is a sort of broad principle and the ways that you can sue a sovereign where the sovereign has consented by its own statute or some other statutory exception applies. The FSIA was enacted in 1976 and it has a whole roster of exceptions, most of which concern commercial activities. So you know if Argentina sells bonds on the international market, it’s acting like a commercial actor, it’s not immune from suit about its issuance of those bonds. There is all kinds of things like that. The FSIA has something known as the expropriation exception, which says that if the claims concern rights and property taken in violation of international law and the foreign sovereign uses that property in commerce here in the states or its instrumentality is commercially active in the United States, then it can be sued and those things get complicated too. But there are a number of cases some of which I’m involved in where that’s the hook by which the foreign country, the foreign museum is sued.
Katie Wilson-Milne: And that means that if Germany – is this related to the Act of State Doctrine at all? Like Germany is, whether they have stolen it or not, we can’t be suing Germany for what it did to…
Nicholas O’Donnell: The Act of State Doctrine, so the difference is, the FSIA concerns who can be sued today. Which defendant in possession of the property in question can be sued? So Spain has been sued. Jurisdiction has been successfully acquired over Spain in federal litigation in California for example over painting that the Nazis stole. Because the question isn’t about whether Spain did anything wrong in the 30s. It’s Spain, a sovereign today, has the property. Can it be sued? The court found the answer was yes in multiple iterations it has ruled for and against the claimant. That case was reinstated last year. The Act of State concerns the underlying taking itself. And this is the key issue, you know, that’s live right now. The Act of State Doctrine says generally that, notwithstanding the existence of jurisdiction, that U.S. federal courts should not hear claims that address acts of a state against its own citizens. And the clearest example of this is expropriations by the Soviet government of Soviet citizens which have routinely been dismissed under the act of state doctrine. The court will note, you know, there is an obvious lack of due process here and no one’s validating this transaction but under this doctrine, we’re just not going to wade into what the government does to its own citizens. That itself has certain requirements. The property has to be in a certain place etc., etc.. But the tension is between that action generally and the treatment of international law more broadly and then Nazi Germany specifically. And so in Steve’s example of the case I’m involved in right now, the collision there concerns, and the DC circuit has recently held, that the treatment of German Jews is different. It didn’t cross international borders. But that’s not the question, that the Holocaust and the genocide, that is a crime against international law from when it began is the thing that justifies jurisdiction and it’s not, it’s not, we’re not going to sort of step to the side of it in a way that the courts will for other obvious confiscatory takings in places like Cuba or Soviet Union or anywhere else.
Steve Schindler: Just out of curiosity, if you are able to successfully assert jurisdiction over say Spain with respect to an object that the Spanish government holds in Spain. How do you enforce that judgment? It’s very hard.
Nicholas O’Donnell: It’s very hard.
Steve Schindler: I would think.
Nicholas O’Donnell: Execution under the FSIA has its own separate provisions. Execution on the property of the defendant has its own provisions and it’s very difficult. And it hasn’t too often gotten to the point, although there is a case involving a library in Russia right now where this is the case, where a foreign sovereign will just literally thumb its nose at the judgment. But it gets complicated and usually there is a lot of sort of back channel diplomacy happening at that point.
Steve Schindler: There has been a recent decision out of the ninth circuit in a case involving the Norton Simon museum and the –
Katie Wilson Milne: Which is in Pasadena.
Steve Schindler: And the heirs of Jacques Goudstikker. And it’s a fascinating case because it’s been in our court system for a very long time and maybe is a good way to illustrate some of the ideas in your book and how sometimes the technical hurdles that claimants face in our system can feel insurmountable.
Nicholas O’Donnell: Sure. So the case in which Marei von Saher is the plaintiff is really fascinating and it really does encompass a lot of the issues, we’ve been talking about today. Jacques Goudstikker was a very prominent Dutch art dealer who in the face of the Nazi occupation left the Netherlands, actually died on the ship that was taking him from Europe very shortly afterwards. In the vein of what I was talking about a while ago, Göring and Alois Miedl take over his gallery not ,again by just marching and taking everything off of walls, but by actually coming in and then holding a meeting and becoming the controlling shareholders. This becomes important later for unexpected reasons. After the war, his widow makes a number of claims under the Dutch restitution laws. She does not make a claim for this particular painting and there is some dispute about the extent to which the painting was referenced specifically or acknowledged as something that she was looking for. In the 60s, a man named George Scherbatoff-Stroganoff —
Katie Wilson-Milne: That’s a great name.
Nicholas O’Donnell: — Comes forward and says, “that’s my painting. The Soviet Union took it, the Soviet government took it from me in the 1920s” and the Dutch government gives it back to him. I’ll call him George. George then sells it to Norton Simon who puts it in his eponymous museum in the 1970s where it still is today. Sorry, I start all this about saying, what it was. The paintings were talking about or two Luchas Cranach the Elder panels of Adam and Eve. So Stroganoff gets the paintings back in the early 60s. He sells them to Norton Simon. Norton Simon puts them in the Norton Simon museum and they are still in Pasadena today. In the early 2000’s, Marei von Saher starts, before that, I won’t speak to her overall strategy but I think actually in the 90s, she starts investigating the broader destination of the Goudstikker collection, of a lot of which is still in the Netherlands. The Netherlands initially turns her away and then ultimately reverses itself and gives her back everything that’s still in Dutch government possession on the grounds that whatever the procedures of the late 40s and early 50s, now under the perspective of the Washington Principles, these things rightfully ought to go back to her.
Steve Schindler: And didn’t also Jacques Goudstikker had this little book, right? Of all of his works were listed or many of his works were listed.
Nicholas O’Donnell: Yes. So this is a collection in which a lot of the challenges we’ve talked about were lower in the sense that there was literally a list of what he had had and that could be searched for. Paul Rosenberg is the other most prominent example of this, of a well renowned French collector and dealer who, who had a list.
Katie Wilson-Milne: That survived.
Nicholas O’Donnell: That survived. So von Saher begins and starts to have some success getting things back from the Dutch government and she approaches Norton Simon about the Cranachs and the museum declines to restitute the painting to her and so she sues the museum in California. The museum moves to dismiss, asserting a statute of limitations.
Katie Wilson-Milne: And what were her claims?
Nicholas O’Donnell: Her claims were that the museum essentially, you know, under common law had not acquired good title to the paintings because they were stolen from Goudstikker and then everybody else after Goudstikker had defective title and that she as his heir had superior title to everyone else.
Katie Wilson-Milne: And how did she plead, that she overcame this statute of limitations?
Nicholas O’Donnell: She pleaded using California’s then relatively recent, in response to a lot of these topics – most of which happened at the sort of museum ethical level and these super national things like the Washington Principles – California, not just on the question of art, California tried to address a number of Holocaust related issues in the early 2000s. And one of the things it did was it abolished the statute of limitations for claims to Nazi-looted art, allegedly Nazi-looted art. And so –
Katie Wilson-Milne: Completely?
Nicholas O’Donnell: — Completely. So that law, under that law her claims were clearly timely because there was no statute of limitations. The museum moved to dismiss and ultimately took the case to the Ninth Circuit, where it successfully convinced the Ninth Circuit – Federal Court, Appeals Court – that that California state law was unconstitutional. That that state law intruded on to the foreign affairs powers of the United States government and thus under the supremacy clause of the Constitution had to yield to U.S. federal law. So the dismissal was affirmed.
Katie Wilson-Milne: But there’s no federal statute limitations?
Nicholas O’Donnell: There is no federal statute of limitations but the federal courts are saying, “we’re not telling you what the statute of limitations ought to be. We are telling you California, you can’t do that. You’re intruding in an area that under the dynamic and the relationships that the constitution creates between the states and the federal government, you’ve stepped over the line.”
Steve Schindler: Do you have any idea why the Norton Simon took on this burden, you know, it’s…
Nicholas O’Donnell: I don’t.
Katie Wilson-Milne: It’s an immense effort. It’s not like they just took it to court and kept going with it to see if they can win. They went for years and millions and millions of dollars.
Nicholas O’Donnell: It is an extraordinary effort and I do not know. Because what I just described is just the very, very beginning. So…
Katie Wilson-Milne: I find the Ninth Circuit decision fascinating. I mean to say the federal law controls state decisions about statutes limitations for common law claims when there is no federal regime for statutes limitations and not to provide, you know, an answer or guideline for how to put one in place that would meet supremacy clause requirements.
Nicholas O’Donnell: Yeah, you know, I think the context of California’s other laws is instructive in understanding how the Ninth Circuit got there. Because California had done similar things with regard to insurance. Remember I mentioned the insurance policy question? It had created sort of a California clearinghouse to address insurance policy claims. So it was doing the whole bunch of things.
Steve Schindler: It also had the resale royalty act, which ran into problems as well.
Katie Wilson-Milne: That’s true.
Nicholas O’Donnell: But California specifically with regards to the Holocaust was doing a number of things in which it was taking a, you know, an assertive policy to try to correct what it felt like needed to be corrected. And so the Ninth Circuit, I think looked at all that and was persuaded by the Norton Simon’s arguments that this started to get into too much about how the U.S. interacted with other governments, which I think was not necessarily correct, but nonetheless. California then revises its statute of limitations again and says, “okay, well, you told us, ‘you can’t do that.’ Well now I’m going to make the statute of limitations for the recovery of any work of art, six years.” The case is dismissed again.
Katie Wilson-Milne: Six years from discovery?
Nicholas O’Donnell: Six years from – yes. When the case is dismissed by the district court goes back up to the Ninth Circuit, Ninth Circuit this time says, “no, that’s okay. You can do that because this is a neutral statute about property.” And to your point Katie, “we’re the federal government. We don’t care what the states do with their loss of property.”
Katie Wilson-Milne: Right. It’s not Holocaust specific.
Nicholas O’Donnell: It’s not Holocaust specific. It’s not telling the federal government what to do. It’s not tying the hands of U.S. diplomats. It’s just saying “whether you stole the painting because you’re a Nazi or because you broke into my house, you got six years.” Case tthen goes back to district court. Ultimately, gets litigated and decided substantively that von Saher missed her deadline to file a claim under Dutch law in the late 40s. In so doing, the district court analyzed those Dutch laws and which laws applied to Dutch property and which laws applied to alien property and came up with what the district court thought was the deadline for von Saher’s predecessor to, her mother, to have done something in the late 40s.
Katie Wilson-Milne: Not applying California law at all?
Nicholas O’Donnell: Not applying in California law. Applying Dutch law and concluded that Jacques Goudstikker’s heirs, by which their successors today are bound, had missed that deadline. She appealed, Marei von Saher appealed again and in that brief – this will tee-up the ethics discussion – in that brief, in which the Norton Simon very skillfully argued these points of law. It concluded with a very perplexing section in which it said essentially the Marei von Saher was an inequitable plaintiff who regardless shouldn’t be entitled to recover because her, because it alleged her father was a Nazi. Marei von Saher’s father was German and it was just an inexplicable ad homonym attack on the plaintiff at that point that had absolutely nothing to do with substantive rights –
Katie Wilson-Milne: Neither here nor there.
Nicholas O’Donnell: — And it had nothing to do whether the transfer in the 40s was lawful or the deadline had been missed or some other doctrine was implicated. It was really, I thought inexcusable. But the district court rules for Norton Simon. This was in 2016 and Marei von Saher appealed and just this summer the Ninth Circuit ruled against her again and at this point implicated and invoked the Act of State that we talked about. And interestingly what the Ninth Circuit said was the Act of State that compelled dismissal was the Dutch government’s restitution to Stroganoff in the 60s. It held that we would, that we, the courts, would have to reevaluate the restitution decision to Stroganoff in the 60s to allow this case to proceed and we don’t want to second guess that decision.
Katie Wilson-Milne: Wow. And under Dutch law title can pass if property is stolen anyway, so those U.S. issues weren’t present.
Nicholas O’Donnell: Right and so that is the state of the case now. I believe that von Saher moved the Ninth Circuit for rehearing within the deadline. I think that decision was in early July and she filed a petition timely, which is pending. If that is not granted then her last option will be to petition Supreme Court to take the case.
Katie Wilson-Milne: Is it undisputed now that U.S. law does not apply or how do you think of that?
Nicholas O’Donnell: I think that’s right. I don’t want to over state it because the briefing on the summary judgment, I’ve read but not recently. I think the party is all briefed the question assuming that Dutch law applied. First of all no one is defending the validity of the transfer out off Goudstikker’s hands. The Norton Simon has not ever argued that some exception applies to that transfer such that the title is good thereafter. The briefing really focused on whether the late 40s restitution procedures were complied with or not. Interesting, and I thought quite skillfully what van Saher argued in her summary judgment brief in 2016 was that if the Act of State doctrine were to be applied, it should come out in her favor because the Dutch government had in the last ten years unequivocally stated that the property of Jacques Goudstikker taken in the 40s was looted art and should be returned, and that to refuse to give her a work of art that was part of that collection was contradicting the conclusion of the Dutch government.
Katie Wilson-Milne: It’s so ironic, I mean, I don’t know if the parties could have litigated this in the Netherlands but the fact that they are in the U.S., perhaps presuming it’s a friendlier forum for von Saher, and then they end up in a U.S. court applying Dutch law and maybe in a much less friendly way than the Dutch government would be doing today.
Nicholas O’Donnell: It is deeply ironic.
Steve Schindler: And certainly, one of the things that we, you know, don’t want to lose track of is that the amount of money that’s spent on this litigation is, you know, in the millions of dollars. And it’s really deeply ironic as we’ve noted that we have a work in plain view that was looted by the Nazis in a prominent American museum in California.
Katie Wilson-Milne: And no one disputes that.
Steve Schindler: And they just don’t want to give it back.
Nicholas O’Donnell: And I think the thing that, you know, that troubles me in that case and that is often troubling is, it is easy to understand the perspective of a collector who bought something in the 70s or 80s and paid their own money for it and then suddenly because the world is a more informed place, they understand better the history of this object.
Katie Wilson-Milne: And they feel duped too.
Nicholas O’Donnell: That person is in a genuine quandary. You know, Norton Simon is dead. His museum is there.
Katie Wilson-Milne: Is a non-profit.
Nicholas O’Donnell: And you know in a situation like that, obviously, if you take the painting out of the museum, the collection of the museum is diminished but it’s just, you know, the museum is not the victim here.
Katie Wilson-Milne: Yeah it’s an incredible story. Well, thank you Nick. We loved having you and good luck with your book. It’s terrific.
Nicholas O’Donnell: Thank you for having me.
Katie Wilson-Milne: We recommend it to everyone and we will post a link to it on the podcast website.
Nicholas O’Donnell: Thank you very much.
Steve Schindler: Thank you, Nick. And that’s it for today’s podcast. Please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: And vice versa. The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.