In the wake of more WWII/Nazi era stolen art legal battles, the International Foundation for Art Research (IFAR) has issued a new Provenance Guide, which highlights the importance of archival research, and states that provenance research is “a must” for all art purchasers.  The Provenance Guide includes links to numerous archival websites and databases (including the Getty Research Institute), which will aid in provenance due diligence.  IFAR states that provenance litigation demonstrate that “all available archival materials must be consulted . . . ” because among other things, “documentary evidence may be open to interpretation.”

 

 

 

In recent art world news, the Metropolitan Museum of Art in New York has turned over another antiquity to prosecutors in Manhattan after one of its curators had raised concerns about the ancient object after researching it last year.  Prosecutors have taken custody of the ancient artifact, the head of an ancient marble sculpture of a bull, on loan to the Met Museum, due to concerns that it had been looted from a Lebanese storage area during the civil war in Lebanon in the 1980s.

The prior owners of the 2,300 year old marble object claim they have clear title to the antiquity and have taken legal action against the prosecutors for its return.  The prior owners are also pursuing legal action against Lebanon’s antiquities directorate in connection with a federal lawsuit in which they argue that “neither the Lebanese government nor the Manhattan prosecutors have offered convincing proof that the [antiquity] was stolen.  The lawsuit also cites property rights, cultural patrimony laws, statutes of limitations and jurisdictional issues as grounds for the sculpture’s return to them.”

The prior owners purchased the artifact from an art dealer in London back in 1996 for over $1 million and then sold it to a collector in 2010 who is the current owner.  The current owner loaned the antiquity to the museum that year, but has since asked the prior owners to take the artwork back and compensate him after becoming aware that Lebanon was disputing its provenance.

The prior owners’ attorney said in a statement that he and his clients believe the “district attorney’s position is ill-founded” and added that the prior owners are “bona fide purchasers with clean hands.  By contrast, for more than 50 years, Lebanon has failed [to] take any action domestically or internationally to report any theft of the bull’s head.”

The Met Museum released the following statement:  “Upon a Met curator’s discovery that this item on loan may have been stolen from government storage during the Lebanese civil war, the museum took immediate action.  We contacted the Lebanese government and the lender, we took the item off display, and we have been working with federal and state authorities, which recently involved delivering the head of the bull to the Manhattan D.A. upon its request.”

The antiquity has a deeply rooted history.  According to museum and Lebanese authorities, the artifact was “first catalogued in 1967 by a Swiss archaeologist excavating the Temple of Eshmun in Sidon, Lebanon.  It is believed to be of Greek origin, was warehoused in the city of Byblos, the site of a looting spree in the 1980s.”

This is the second time in recent weeks that the museum has been asked to turn over an antiquity to prosecutors in Manhattan with different circumstances in each case.  As discussed in our recent blog post last week, the Met Museum returned an ancient vase that it bought at auction back in 1989 due to concerns that it may have been looted from Italy.

For more information on this latest antiquity provenance dispute, see “Met Museum Turns Over Another Relic With Disputed Past to Prosecutors,” published online by the New York Times on August 1, 2017.

In recent art world news, last week the United States Court of Appeals for the Ninth Circuit held that a holocaust survivor’s heirs can seek the return of a Nazi looted painting from Spain’s Thyssen-Bornemisza Museum.  The prized painting, “Rue Saint-Honore, Apres-Midi, Effet de Pluie” (1897), is a vibrant Impressionist oil-on-canvas created by Camille Pissaro while living in Paris in the late 19th century. Nearly 80 years ago, Lilly Cassirer was forced to surrender her family’s treasured Pissaro painting to the Nazis in exchange for safe passage out of Germany during the Holocaust.  For nearly the past 20 years, Lilly Cassirer’s heirs have been trying to get it back.

By the end of World War II, the painting had disappeared.  In believing the work was lost, the German government paid Lilly Cassirer $13,000 in total reparations in 1958.  Lilly Cassirer passed away four years later in 1962.  In 1999, a friend of Lilly Cassirer’s grandson Claude Cassirer, who had fled Germany with Lilly and her family in 1939, discovered a photo of the painting in a catalog and reached out to him.  Shortly thereafter, Claude Cassirer learned that the painting was displayed in the Madrid based museum.

Claude Cassirer had initiated the litigation against the museum, which was taken over by his children, David and Ava Cassirer, after Claude’s passing in 2010.  The family had previously went through diplomatic channels to request the return of the painting, but was rejected.

In last Monday’s ruling, the Ninth Circuit concluded that the museum previously failed to establish that it was unaware the painting was stolen when the work was acquired from Baron Hans-Heinrich Thyseen-Bornemisza, scion of Germany’s Thyssen steel empire and one of the 20th century’s most eminent art collectors.

Baron Hans-Heinrich Thyseen-Bornemisza had acquired the painting for $275,000 from a gallery owner in New York in 1976.  Before that, the painting had been sold and resold by various United States art collectors.  The Baron’s art collection of over 700 paintings was eventually turned over to Spain, which created a non-profit foundation to run the museum named for him.

The Cassirer family’s attorney praised the court’s decision and said “[i]t sent a strong message that even public authorities cannot take possession in bad faith of stolen property and then somehow gain title to it simply over the passage of time.”  The museum’s attorney said that Spain remains confident it will prevail and that the museum acquired the painting in good faith.  The Cassirer family disputes the museum’s attorney’s assertion and believes it should have been obvious to museum authorities by the 1990s that the museum had acquired a Nazi looted work.

The Cassirer family is hopeful that the outcome will lead to the return of the painting and has said that it should be displayed publicly.  The Pissaro painting has been appraised at more than $30 million.

For a detailed background and procedural history of the case, see the Ninth Circuit’s decision captioned Cassirer v. Thyssen-Bornemisza Collection Foundation of July 10, 2017.

 

In recent art news, known art fraudster Vincent Lopreto, who previously served time in prison for selling forged Damien Hirst prints, was charged in a Manhattan courtroom yesterday for selling nearly half a million dollars worth of counterfeit Damien Hirst prints over a two year period. Lopreto pleaded not guilty. Two other individuals, Marco Saverino and Paul Motta, have been charged in the alleged art fraud scheme as well. Those individuals are being held out of state.

Lopreto was arrested in New Orleans last week following a recent sting operation by undercover New York police officers, who bought a couple of Lopreto’s counterfeit Damien Hirst prints. Lopreto and the other defendants were selling the fake art work for between $3,000 to $14,000 for each print. Authorities claim that Lopreto had been advertising the “limited edition” prints online with alleged fake certificates of authenticity and purchase receipts.

Manhattan District Attorney Cyrus Vance said in a statement that this case of fraud “went beyond plain imitation” as the defendants had deceived “a multitude of buyers into purchasing counterfeit art that was falsely passed off as genuine.”

If convicted, Lopreto could receive a sentence of up to 20 years in prison.

In recent art news, Trinity Church in Lower Manhattan is being sued by a sculptor for relocating his bronze sculpture of the stump and root system of a very large sycamore tree entitled “The Trinity Root” that was formally installed on the church grounds.

In September 2005, the 18-foot-tall work was installed by sculptor Steve Tobin in the church courtyard in the same location where the original 70-year old sycamore tree stood until it was damaged and ripped out of the ground by the seismic impact of the collapse of the twin towers of the World Trade Center on September 11, 2001.

In late 2015, the sculptor discovered that the church had relocated the sculpture to a church-owned site in Connecticut without his consent.  The sculptor had received photographs from the church showing the sculpture with “significant damage” after being told that the sculpture had arrived to the new location in good condition.

The recently filed lawsuit in the Federal District Court in Manhattan alleges that the church violated a law known as the Visual Artists Rights Act (VARA) that gives visual artists rights over their works even when no longer owed by them.  The sculptor’s attorney said that the law “prohibits the removal of sculptures” created to be permanently installed at a specific site.  “This is about the solemn promise the church gave to Steve Tobin when he offered to create that sculpture” and “[h]e offered to create it if the church would give it a permanent place in the courtyard.  The church agreed.”

According to the lawsuit, after the church’s new leader was installed in 2015, he moved “to send ‘The Trinity Root’ away because he did not want non[-]parishioners and ‘hordes of strangers’ to continue to crowd the church’s courtyard.”

The church released the following statement:  “While we have no comment on this litigation, Trinity is pleased to have the sculpture at Trinity’s retreat center, where it will be among a collection of planned sites that will encourage prayerful reflection, remembrance and spiritual transformation.”

For additional information in connection with this suit, see “Fate Of The ‘Trinity Root’ 9.11 Memorial By Steve Tobin To Be Decided In Federal District Court.”

 

The US. District Court for the District of Columbia recently denied a preliminary injunction seeking the reinstallation of a controversial “anti-police” painting at the U.S Capitol complex.

David Pulphus, a student artist from Missouri’s First Congressional District, and William Lacy Clay, the congressional representative for that district, filed a lawsuit claiming that their First Amendment rights to free speech were infringed upon when the Architect of the Capitol, Stephen T. Ayers, removed Pulphus’s painting from a display of student art.

Pulphus’s painting was selected to represent Clay’s congressional district in the 2016 Congressional Art Competition, and was hung in the Cannon Tunnel in the U.S. Capitol complex in June 2016 with the other winning artwork.  The painting was removed several months later by the Architect of the Capitol (who oversees the competition), after receiving several complaints that the painting was “anti-police.”

The Court prefaced its opinion stating that “[a]lthough the Court is sympathetic to plaintiffs given the treatment afforded Pulphus’s art, under controlling authority this case involves government speech, and hence plaintiffs have no First Amendment rights at stake.”

Read the Court’s opinion here.

The “Fearless Girl” was created by sculptor Kristen Visbal and erected in Bowling Green in honor of International Women’s Day in March.  The statue has become wildly popular.  Although set to be removed next week, it will remain in place until early 2018.  However, not everyone is supportive of the artwork.

Fearless Girl Statue by Kristen Visbal New York City
Photo by Anthony Quintano, used under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license (unaltered)

“Fearless Girl” defiantly faces Wall Street’s famous “Charging Bull” statue, which was created by sculptor Arturo Di Modica, who copyrighted and trademarked his creation.  Di Modica believes “Fearless Girl” subverts the meaning of his artwork, and his lawyers have accused the company that commissioned the statue of improperly commercializing D. Modica’s bull in violation of the copyright.

Read more here and here.

The New York Times recently reported that its readers are divided on the issue of whether the original intent of the artwork should be able to stand over time and how much public art is protected.  Read the article and NYT’s readers’ comments here.

 

In recent art news, longtime collaborators and respected art scholars, Emma C. Bunker and Douglas A. J. Latchford, who had become authorities on Southeast Asian antiquities in which their approval could virtually guarantee an ancient object’s value and legitimacy, have become entangled in a criminal lawsuit filed by the Manhattan district attorney last December in New York as “Co-Conspirator No. 1” and “Co-Conspirator No. 2.”  Although neither expert has been charged and neither is named in the complaint, it was reported that people familiar with the case have confirmed their identities.

The collaborators and longtime friends authored three seminal volumes, namely, “Adoration and Glory:  The Golden Age of Khmer Art,” “Khmer Gold” and “Khmer Bronzes,” which are regarded as core reference works for other experts.

The complaint alleges that “over a period of years the co-conspirators and others helped a prominent New York gallery owner, Nancy Wiener, falsify the documentary history of looted Cambodian relics, making them easier to market.”  A federal agent said in the complaint that “[m]isrepresenting the true provenance of an antiquity is essential for selling stolen items in the market.”

In the criminal suit, Wiener, who has pleaded not guilty, is accused of using her business “to buy, smuggle, launder and sell millions of dollars worth of antiquities stolen from Afghanistan, Cambodia, China, India, Pakistan and Thailand.”

While the accusations in this case are hardly new in the history of art fraud, experts comment that this case

highlights the vulnerabilities of the art world, where authenticity and ownership disputes are common and where scholarship, and the people who can wield it, often provide the imprimatur that dealers need to close sales.”

Neither Bunker nor Latchford have responded to news media requests for an interview.  However, Latchford has denied any wrongdoing in previous interviews and defended his collecting practices as the “norm for an era when far less rigor was attached to provenance and sales documents.”

For additional information regarding this intriguing case, see “Expert Opinion or Elaborate Ruse?  Scrutiny for Scholars’ Role in Art Sales,” published online by the New York Times on March 30, 2017.

 

The New York Times recently reported on a lawsuit filed in New York State Court in which the heirs of Fritz Grunbaum are citing the recently enacted Holocaust Expropriated Art Recovery Act (known as the HEAR Act) in an effort to claim two valuable drawings by the late Austrian artist Egon Schiele.  The HEAR Act, adopted last December, has been widely praised as a necessary tool to provide the victims of Holocaust-era persecution and their heirs a fair opportunity to recover works of art confiscated or misappropriated by the Nazis during World War II.

Grunbaum’s nearly 450 piece exquisite art collection has been the center of controversy almost since the collection was confiscated from his Vienna apartment in 1938.  Over the years, Grunbaum’s heirs have argued that the collection was stolen by the Nazis.

Others, such as collectors, dealers and some museums have countered that the artwork was inventoried by the Nazis and not stolen, and that 53 of the some 81 Schiele works were legitimately sold by Grunbaum’s sister-in-law to a Swiss art dealer in 1956.  These parties are of the view that previous courts have found that the Schiele works were not stolen and that no further claims should be considered on such works.

However, the Grunbaum heirs assert that the previous claims, in the present case and others, were determined on legal technicalities, not the merit of the argument that the works were looted by the Nazis and that this is the type of case that the new law was enacted to address.

The HEAR Act creates a federal statute of limitations for such claims that is six years from the time of “actual discovery” of the whereabouts of the work.  The new law is consistent with the “spirit of two international proclamations stating that technicalities should not be employed to prevent stolen property from being returned to rightful owners.”

The two Schiele works being sought by Grunbaum’s heirs, namely, “Woman in a Black Pinafore” (1911) and “Woman Hiding Her Face” (1912), were part of the 1956 sale to the Swiss dealer.  The attorney for Grunbaum’s heirs, however, argues that the circumstances of the 1956 sales transaction were never fully investigated and that the lost works were not discovered by the heirs until they were noticed for sale at a 2015 art fair.  The two Schiele drawings are said to be valued together at about $5 million.

The Grunbaum heirs’ suit was filed in November 2015 after learning that Richard Nagy, a London art dealer and Schiele specialist, was trying to sell the two Schiele drawings at an art fair at the Park Avenue Armory earlier that same year.  Nagy has fought the claim in court by arguing that he acquired both works “in good faith and in a commercially reasonable manner” after the United States Supreme Court declined to hear the attorney for Grunbaum’s heirs appeal of an earlier case.  Nagy’s attorneys argue that prior court rulings on the Schiele works from the Grunbaum collection were based on a finding that such works had been properly conveyed in 1956.  Specifically, Nagy’s attorneys assert that the attorney for Grunbaum’s heirs was wrong to invoke the new HEAR Act because the law does not apply to cases where a final judgment has been reached.

Agnes Peresztegi, president and legal counsel of the Commission on Art Recovery, an organization founded by billionaire art collector Ronald S. Lauder, however, sides with the position of the attorney for Grunbaum’s heirs.  She indicated that the prior case was not decided on the merits, but rather on a technical issue that too much time had passed to pursue a claim.  Peresztegi “welcomes the use of the new law in deciding whether many of the Grunbaum collection’s Schieles, including the two owned by Mr. Nagy, were stolen.”

The attorney for Grunbaum’s heirs maintains a positive attitude regarding the case in which he recently indicated that “[w]e believe that the expert report and scholarship of Dr. Jonathan Petropoulos, the world’s leading expert in this field, will persuade the court that the evidence shows that Fritz Grunbaum was a victim of Nazi art looting.”

We will continue to monitor this case and will report updates on same on the Art Law blog.

 

 

 

As recently reported in the New York Times, the heirs of Alfred Flechtheim, a prominent German art dealer and collector, brought suit in federal court in Manhattan earlier this week against the German state of Bavaria over alleged Nazi-looted art works.  The heirs argue that the German state of Bavaria has refused to return art works that were looted by the Nazis before World War II.

The Flechtheim heirs seek the return of eight paintings by artists Max Beckmann, Juan Gris and Paul Klee from the Bavarian State Paintings Collection.  According to the complaint, the eight paintings include Beckmann’s “Duchess of Malvedi” (1926), “Still Life with Cigar Box” (1926), “Quappi in Blue” (1926), “Dream—Chinese Fireworks” (1927), “Champagne Still Life” (1929) and “Still Life with Studio Window” (1931); Gris’ “Cruche et Verre Sur un Table” (1916) and Klee’s “Grenzen des Verstandes” (1927).

The heirs had been in negotiations with the Bavarian government for seven years prior to filing their suit.  In their court filing, they accused the German state of not meeting international commitments on the restitution of Nazi-looted art.  Specifically, the complaint states “Bavaria’s refusal to confront its responsibility has persisted since the war” and its “chain of title to the paintings is defective because it was rooted in the seizure of Flechtheim’s property in violation of international law.”

In the complaint brought by the son and widow of Flechtheim’s nephew, the heirs allege that the works being sought were among those Flechtheim was forced to leave behind as he fled Germany and his galleries were taken over.

The Bavarian government has previously taken the position that the paintings were not looted art and that the works were sold by Flechtheim in 1932 before the Nazis came to power.  And, in 1974, the paintings were later donated to the Bavarian State Paintings Collections by Munich art dealer, Günther Franke.

The Flechtheim heirs, however, dispute the Bavarian government’s position, citing evidence that they claim shows the paintings were still in Flechtheim’s possession in 1934 after the Nazis came to power.  The heirs criticize the German state for its refusal to open records that they claim would be helpful in researching the fate of the paintings.  Their court filing cites a letter sent last year to the governor of Bavaria by nearly 30 members of United States Congress requesting “‘greater dialogue and cooperation to fulfill’” international principles aimed at supporting the restitution of art seized by the Nazis.”

The case is Hulton et al. v. Bayerische Staatsgemaldesammlungen et al., United States District Court, Southern District of New York, No. 16-09360.