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Wherefore Thou Art #55
Trying To Undo The Past

I watched the Google headlines for a couple days, something about Russia refusing to allow some of its state-owned paintings to travel to England for an exhibition. The headlines made it appear that this was another example of modern Russian obstinacy; as the country continues to stumble, in fits and starts, toward something resembling democracy, there have been repeated occurrences involving all sorts of things (Iran, Georgia, freedom of the press) that more than anything else recall Khrushchev banging his shoe on the table.

But this art thing wasn't that at all. Russia was concerned, primarily, that some of the art it was going to send to England might be subject to legal actions by heirs of some previous owners of the paintings. Many of the paintings in questions, apparently, were seized by the Bolsheviks from their bourgeoisie owners following the 1917 revolution and remain the property of the Russian state today, and there are descendants of the original owners who wouldn't mind having the works returned to them. The U.K. apparently lacked the sorts of laws against the legal seizures of artworks that most governments have in place. Russia wasn't about to allow its Gauguins, Matisses, and Picassos travel unprotected.

Welcome to the world of art reparations, a mind-bending, heart-tugging place where concepts of historic atrocities collide with the current "greater good", where the interests of long-dead innocent victims are often at stark odds with a different sort of innocent victims today. And where, sometimes, nobody really wins in the end but the lawyers.

The issues were brought into sharp focus by writer-activist Hector Feliciano in his brilliant 1994 book The Lost Museum, in which he recounted the Nazis' seizures of art in the 1930's and 40's from Jewish and Eastern European collectors and dealers, and the plights of descendants of some of the original owners to recover to works. Hitler knew his art, to be sure, and it was a Nazi priority, as a country was conquered, to methodically secure, catalog and either warehouse or sell off the often-priceless artworks located within. It's been estimated that one-third of the Western world's fine art was seized and moved around by the Germans during this time. Works that Hitler considered great "Germanic" art, typically highly representational pieces in the "old master" style were transported to Austria, where a mammoth Third Reich museum was planned. What Hitler considered non-Germanic or "decadent" art, including almost any "modern" (Cubist, Impressionist, etc.) art, or anything by Jewish or Eastern European artists, was sold off through shady networks of dealers in Paris, Zurich and New York.

Efforts were made after WWII by the Allied forces to return the works to their rightful owners, with some success. Many of the former owners, however, had been killed or had simply vanished. Most of the meticulous records kept by the Nazis about the seized art wound up behind the Iron Curtain and inaccessible. The "decadent" art had been disbursed around the world by a combination of shameful art merchants, phony paperwork, and the quiet, studied "don't ask - don't tell" modus operandi concerning artworks' provenance that was quickly adopted by the fine art world, and that continued well into the 1990's.

A number of things happened in the 90's that turned this around. The fall of the Iron Curtain resulted in the release of a treasure trove of old Nazi records identifying seized art's original owners. Heirs of the original owners were becoming people of means, with the financial ability to chase down their ancestor's possessions. As the market value of fine art went atmospheric, many of the seized works were now worth fighting about. And scholars, most prominently the author Feliciano, started asking the right questions and, for the first time, started getting answers.

The answer would appear simple a first blush: give the stuff back. But it hasn't always been that simple. For example, every legal system employs a statute of limitations, a time past which a legal claim becomes stale. How would that work here? Does the statute-clock start to run when the piece was stolen, or when an heir discovers a piece's whereabouts, or when an heir makes an initial demand for a piece's return? What country's laws should apply? The laws of the country where the work was seized? Any of the various countries where the work was sold? The country where the work sits now? And what about the rights of an innocent purchaser, who may have recently paid an exorbitant sum for a work whose provenance had long been cleansed of any taint of a nefarious past?

These sorts of issues have been getting hashed out by the courts, and sometimes the result is satisfying, and sometimes not. In one case, a family went after a prominent US art museum for the return of a Matisse seized by the Nazis in the 1930's. The museum fought back, as the work was valued at well into the millions and was the crown jewel of the museum's collection. The museum brought into the lawsuit several downstream dealers that may have had an inkling of the work's troubled past, and that hid this information. After several years of expensive bare-knuckled litigation and rafts of bad publicity, the museum turned the painting over to the family. Saddled with a mountain of debt to its lawyers, the family sold the work to a casino in Las Vegas.

So here's the score: a not-for-profit museum spends a ton of money while getting pilloried, a family goes through several years of litigation hell, the lawyers on all sides get rich, and the Matisse moves from a prominent museum to a casino. Vegas, baby! Other than the lawyers, has anybody truly won here?

From a macro perspective, though, these reclamation efforts, while difficult and morally and legally challenging, have had some positive effects. Museums, dealers, and auction houses are now much more careful (and honest) in their dealings, and there is a new concept of due diligence in the acquisition and maintenance of fine art collections. Sure, lawyers are making money (not that there's anything wrong with that!) but works are being returned to families, light is being shed on hideous, ugly historic behavior by a lot of people who knew better, and historic wrongs are being balanced, in some small way, by reparations. It's not perfect, but then, it can't ever be perfect.

The Russia / England situation recalls the on-going controversy involving Egon Schiele's "Portrait of Wally", a work seized by the Nazi's and which has been impounded in Manhattan for the last eight years while heirs of an Austrian art dealer, and Austrian museum, New York's Museum of Modern Art, and the US Department of Justice lock legal horns. An early part of the saga involved a New York law that stated that art works on loan to legitimate New York museums could not be seized to settle a legal dispute, precisely the sort of protection that the Russians are seeking from the British. The rationale for these laws are simple-to encourage the movement of art across national borders for the cultural enrichment of all. Without these protections, which surely excuse some amount of abominable behavior, the loaning of art for international exhibition would cease. The morality of this can be argued till we all are blue in the face; my two cents is that the more art can move around, the better.

And it turns out that the British have just made legal accommodations that satisfy the Russians. The art is coming to London, and the show will go on.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.