Stolen Art
COMM 383
Art and Entertainment Law
Topics
• Introduction
• Italy Takes on U.S. Museums
– Getty
– Met
• And Individual Collectors
• Former Owners vs. Good Faith Purchasers
– Byzantine Mosaics
– Monet’s “Wheatfields at Vétheuil”
– Chagall’s “The Cattle Dealer”
• Seizure of Art on Loan
– Schiele’s “Portrait of Wally” and “Dead City III”
Introduction
• Art stolen from museums
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Guggenheim
Art Institute of Chicago
Gardner
MOMA
Munch Museum
• Art Stolen in Transit
– Goya
Italy Takes on Museums
• Stolen art in museums
– Getty
– Metropolitan Museum of Art (NY)
– Boston Museum of Fine Arts
Italian Cultural Properties Law
• 2001 Cultural Properties Law
– Artifacts (sculpture, decorated vessels, jewelry,
weapons, armor, mosaics, wall paintings . . .) from the
period 9th century B.C.E. to 4th century C.E. can be
imported into the US only if
• They have an export permit issued by Italy
• There is verifiable documentation that they left Italy before
1/23/01
• 1039 Italian Patrimony Law
– Seeks to recover artifacts which left Italy before the
2001 law took effect
The Met Negotiates with Italy
• Artifacts returned; artifacts lent long-term
Boston Museum of Fine Arts
Negotiates
• Artifacts returned; artifacts lent
Italy Pressures Individual
Collectors
• The new Greek and Roman galleries at the Met are named
for and financed by ($20 million) Mr. Levy and Ms. White
• Leon Levy Foundation donated $200 million to NYU to
establish an institute of ancient studies
• Ms. White has financed many archaeological excavations
Stolen Art and War
Quedlinburg Treasure
G.I. Joe Meador
Former Owners vs. Good Faith
Purchasers
• Legal Concepts
– Statute of limitations
• A statute “declaring that no suit shall be maintained on such
causes of action unless brought within a specified period after
the right accrued.” (Black’s)
• The statute starts to run when the identity of the party is known
[or reasonably should be known], demand is made for the
return of the stolen party, and the demand is refused.
• Differs from one state to another
– NY: 3 years
– IN: 6 years
Former Owners vs. Good Faith
Purchasers
• Legal Concepts
– Due diligence--”prudence; vigilant activity;
attentiveness; or care, of which there are infinite
shades” (Black’s)
– Three degrees
• Low or slight [“that which persons of less than common
prudence, or indeed of no prudence at all, take for their own
concerns”]
• Common or ordinary [“that which men, in general, exert in
respect of their own concerns”]
• High or great (“that which very prudent persons take of their
own concerns”]
Former Owners vs. Good Faith
Purchasers
• Legal Concepts
– Laches-”inequity of permitting a claim to be
enforced” (Black’s)
– Estoppel by laches--”a failure to do something
which should be done or to claim or enforce a
right at a proper time”
Autocephalous Greek-Orthodox
Church v. Goldberg
Autocephalous Greek-Orthodox
Church v. Goldberg
• Facts
– The property in dispute: 4 rare 6th century
Byzantine mosaics, housed for 1400 years in a
church on Cyprus. Cyprus was occupied by the
Turks between 1974 and 1976. When the
Greek Cypriots relocated they found the
mosaics missing in 1979
Goldberg
Facts
Mrs. Goldberg is set up by art dealers in
Indianapolis to view and buy the mosaics
$1,080,000 is paid, divided as follows
$350,000 to the person who claims to
own the mosaics
$282,500 to a Dutch art dealer (commission)
$297,500 to her Indy contact, Fitzgerald
(commission)
$150,000 to a attorneys
Goldberg
• Facts
– Within 6 months she uses another art dealer to
offer to sell the mosaics to the Getty for $20
million.
– The curator, Marion True, contacted Cyprus to
see if these were the missing mosaics.
Goldberg
• Due diligence analysis
– Upon discovering the theft, Cyprus had
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Contacted UNESCO
Contacted museums and curators
Contacted embassies and consulates
Corresponded with Byzantine experts
Advertised in journals
Goldberg
• Conclusion:
– Due diligence was met
– Goldberg must return the mosaics to Cyprus
Goldberg: Analysis under Swiss
Law
• Swiss law requires the purchaser to act “in
good faith”
• There is NO good faith if an honest and
careful purchaser in the particular
circumstances would have had DOUBTS
with respect the the capacity of the seller to
transfer property rights
• Mrs. Goldberg should have had doubts
Facts suggesting doubts
• The art came from an occupied country and the
seller was of the nationality of the occupier
• The art had been part of a building
• She knew nothing about the seller
• Haste
• She paid $1.08 million and asked for $20 million
in 6 months
• There was no record of the calls
Monet:”Wheat fields of 1881”
Cleveland Museum of Art
Deweerth v. Baldinger
• Facts
– 1945: A Monet painting, Champs de Blé à Vétheuil,
went missing from DeWeerth’s sister’s home at which
American soldiers were stationed in World War II
– 1946: DeWeerth tried to locate the painting**
– 1956: Wildenstein and Co. had consignment of the
painting from an art dealer in Geneva
– 1957: Wildenstein sold the painting to Baldinger for
$30,900
– 1957 and 1970: the painting was exhibited in NY
– 1982: DeWeerth located the painting (now worth
$500,000) and demanded its return, suing in Federal
Court in NY
Deweerth v. Baldinger
• Due diligence analysis**
– What DeWeerth did
• 1946: DeWeerth filed a (standard form) report with the military
government in Bonn-Cologne
• 1948: DeWeerth wrote to an attorney regarding the insurance claim
(not covered)
• 1955: DeWeerth sent a photo of the painting to an expert in Medieval
painting and he did not begin a search
• 1957: DeWeerth sent a list of missing art to the West german FBI
• ..........
• 1981: DeWeerth’s nephew located the painting using Catalogue
Raisonné in a 3 day investigation
Deweerth v. Baldinger
• Due diligence analysis**
– What DeWeerth did not do
• Contact agencies (German and American) whose task was to
locate stolen art after the war
• Publicize in stolen art journals
• Continue the investigation between 1957 and 1981 (when
there were 2 exhibits in NY)
• Consult Catalogue Raisonné
• In short, DeWeerth did not do the things which were most
likely to be successful
Deweerth v. Baldinger
• Due diligence analysis
– Conclusion: There was no due diligence.
– Baldinger gets to keep the painting
– Affirmed on appeal
• The (Federal) Court of Appeals for the Second Circuit affirms,
• This court notes that the highest state court in NY had not ruled
on “due diligence” and GUESSES that it would choose to
apply a due diligence analysis
Reproduction of
“The Cattle Dealer”
Guggenheim v. Lubell
• Facts
– About 1965: the Guggenheim concluded that the
watercolor study for the oil painting by Chagall, “Le
Marchand de Bestiaux”, was “missing”
– 1967: Lubell purchased the work from a Madison Ave.
art dealer for $17,000
– 1967: red flag-- the bill of sale noted the work once
belonged to a person suspected of being a thief
– 1970: The Guggenheim conducted an inventory and
confirmed the work’s disappearance
– 1980’s: Lubell sent the work for appraisal at Southebys
and it was recognized as the missing work
– The Museum sued in state court for its return
Guggenheim v. Lubell
• Due diligence
– What the museum did
• Looked inside the walls of the building on 5th Ave.
at 89th Street
Guggenheim v. Lubell
• Due diligence
– What the museum did not do
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Publicize the theft
Notify other museums
Notify auction houses
Etc.
Guggenheim v. Lubell
• Due diligence analysis by the NY appellate courts
– Rejection of a due diligence analysis
• Too difficult to specify the type of activity that would be
required to show due diligence
• The burden is on the purchaser to prove the art is NOT stolen
• A NY statute requiring due diligence had been vetoed by the
Governor on the advice of the State Dept., the Dept. of Justice
and USIA
– Such a requirement would make NY a haven for stolen cultural
property
• Remanded for trial on the issue of estoppel by laches, but
settled on the eve of the trial date
Interaction Between the
Deweerth and Guggenheim Cases
• After the NY Court of Appeals ruled that NY
would not use a due diligence standard in stolen
art cases, in 1992 DeWeerth sued once again,
claiming her suit was subjected to the wrong
analysis. The trial court awarded her the painting.
• Baldinger appealed, and in 1994 the Federal
Appellate court overturned the trial court’s ruling,
saying that it “inappropriately disturbed a final
judgment in a case that had been fully litigated.”
DeWeerth cannot reopen a closed case “to gain the
benefit of a newly announced decision of a state
court.”
Portrait of Wally
MOMA’s Saga: The Schiele
Matter
• Facts
– 1997: The Leopold Foundation in Vienna loaned 150
works by Egon Schiele to MOMA for a 3 month exhibit
– New Year’s Eve 1997: MOMA received a letter
claiming that 2 works were taken by the Nazi’s 60 years
ago and demanding that MOMA keep the paintings
until ownership could be resolved
• Heirs of Lea Bondi--”Portrait of Wally”
• Heirs of Fritz Grunbaum--”Dead City III”
– January 1998: MOMA responded that it is “under a
contractual obligation to return” all of the works
MOMA’s Saga: The Schiele
Matter
• Supoena duces tecum: hours before “Wally”
was to fly out of NY, a subpoena was served
on MOMA ordering them to produce the
paintings before a grand jury
• MOMA moved to quash the subpoena
MOMA’s Saga: The Schiele
Matter
• Supoena duces tecum
• Trial court (New York Supreme Court)
– NY Art and Cultural Affairs Law §12.03 prohibits
seizure of fine art on route to, while showing, or on
return to the lender
– Policy behind §12.03--free flow of art to NY
– Legislative history suggested no loopholes: “allay the
fears of potential exhibitors and enable the State of NY
to maintain its pre-eminent position in the arts”
• Appellate Division reversed the trial court
• Court of Appeals (NY’s highest court) reversed
the appellate division
MOMA’s Saga: The Schiele
Matter
• Seizure
– Federal prosecutors in Manhattan obtained a
seizure warrant which prevented “Wally” from
being returned
– Claim; “Wally” is stolen property. The Leopold
Museum did not have good title.
• National Stolen Property Act (NPSA) “proscribes
the transportation of stolen property in interstate and
foreign commerce.”
Commentary
• Why would the United States government “use
public resources to recover private property on
behalf of a foreign individual against a foreign
museum, particularly where the foreign lender has
abundant reason to believe it actually owns the
property?”
• With all of this free help there is no incentive for
parties to do anything; they could have brought a
claim against the Leopold (50 years ago).
And the Saga Continues
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Amended complaint #1
Amended complaint #2
Amended complaint #3
“Wally” has been in a crate for 7 years, and
no resolution in sight . . . .