“Max Hermann-Neisse” All rights reserved, Estate of George Grosz,  licensed by VAGA, New York;  Image courtesy of Museum of Modern Art

In the August 24, 2011, issue of the New York Times, Patricia Cohen wrote an insightful article about the ramifications of the Grosz v. MOMA case which has pitted a venerable cultural mecca of New York City against the family of one of the 20th century’s most celebrated social and cultural critics, Georg Grosz. As the case bumbles along in favor of the Museum of Modern Art, it is worth musing over a number of points raised by Patricia Cohen. The floor is open for commentary and critiques alike. For further details, please refer back to Patricia Cohen’s article:

Patricia Cohen: “Museums are breaking their own ethics codes and causing the U.S. government to break its international commitments by invoking our courts to resolve Holocaust-era art claims on technical grounds rather than on the merits,” said Jennifer Anglim Kreder, co-chairwoman of the American Society of International Law’s Interest Group on Cultural Heritage & the Arts.

American museums have an obligation not to acquire or come into the possession of stolen cultural property, especially when they are the beneficiary recipients of Federal tax breaks which allow them, among other things, to raise unlimited sums to better serve their public and their donors. Unless otherwise stated, the National Stolen Property Act (NSPA) remains the basic legal instrument by which one can order the seizure of stolen cultural property assuming one can prove beyond a doubt that the property is in fact stolen. For the past five years, the Federal government has successfully intervened in art ownership disputes through seizures of looted cultural items which have resulted in the restitution of those items to their rightful owners.

The US government has been playing with legal fire for decades by declining to apply its postwar international commitments to its own citizens by which property under its jurisdiction which is proven to have been stolen as a result of acts of duress, persecution, or other forms of discrimination during the Nazi era, should be returned to their rightful owners. To date, no one has sought to compel the Federal government to right those wrongs. Neither has anyone thought to challenge the Federal largess to American museums as a means of pressuring them into disgorging their looted cultural assets.

Patricia Cohen: The museum, which acquired the works in the 1950s, declined to comment because the case is being litigated. But it has maintained in court documents that, regardless of the timing issue, it has diligently researched the artworks’ provenance and has found no evidence that the works were looted by the Nazis or any basis for disputing their legitimate ownership.

Affidavits filed on behalf of the plaintiffs in Grosz v. MOMA show a pattern of deceit, distortion and withholding of key documents on the part of MOMA and its legal team. In other words, MOMA has not done its utmost to research the provenance of the works.

“Republican Automation” All rights reserved, Estate of George Grosz, licensed by VAGA, New York;  Image courtesy of Museum of Modern Art

Patricia Cohen: Raymond J. Dowd, the Groszs’ lawyer, counters that the lower court considered inadmissible evidence and also failed to take into account a 1998 federal law that was intended to help Holocaust-era victims recover their assets.

Section 202 of The Holocaust Victims Redress Act (HVRA) of 13 February 1998 states the following:

“It is the sense of the Congress that consistent with the 1907 Hague Convention, all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.” 

By definition, a “sense of” declaration by Congress is non-binding and merely reflects the fact that a majority in Congress shares this view, without going any further. Hence, it is a bit wrong-headed to state that the Act is there to help victims recover their assets. It exists to exert moral suasion on a government that refuses to become engaged in the act of restitution of looted cultural assets. The same would apply to the Washington Principles of December 1998 and to the Terezin Declaration of June 2009. Interestingly enough, the HVRA did not invoke the 1954 Hague Convention.

Patricia Cohen: The Grosz heirs say that Flechtheim was only temporarily caring for the three works and that he was forced to sell or abandon his holdings because of the climate of terror created by Hitler’s regime. The accompanying paper trail that shows bills of sale, liquidation papers and letters, they add, was later fabricated or distorted to mask illicit dealings.

The Grosz case hinges in part on the historical definition of a so-called forced sale, a commercial act that would not have occurred had circumstances been entirely different, in other words, had there not been a pervasive environment of anti-Jewish persecution and harassment sponsored by the National Socialist State. Or, put more simply, if Georg Grosz were alive today, he would have answered “no” to the question: “Mr. Grosz, would you have sold your works of art had the Nazis not persecuted and harassed you for what you are and who you are?”

Patricia Cohen: MOMA, which obtained the two oil paintings and the watercolor at different times in the early 1950s, has said it was unaware of any doubts about the chain of ownership. Grosz himself saw the portrait of Herrmann-Neisse hanging on the museum’s walls in 1953, and wrote to his brother-in-law, “Modern Museum exhibits a painting stolen from me (I am powerless against that) they bought it from someone, who stole it.” Grosz, who died in 1959, never contacted the museum about regaining possession, however.

Therein lies the rub. Did Georg Grosz know that he was within his rights to claim the painting once he saw it hanging on MOMA’s walls? Was he aware of statutory limits placed on claims for stolen property? How omniscient does a victim have to be in order to knock some commonsense into the insensitive souls of museum officials bent on safeguarding what they view to be rightfully theirs even if the historical evidence does not bear them out?

Patricia Cohen: During the Nazi regime about 100,000 artworks were looted from public and private collections, including forced sales.

That estimate is indefensible, uncorroborated, and historically rootless. There were at the very least 100,000 artworks forcibly removed from German-occupied France alone. Since there were 19 countries that were invaded, occupied, or otherwise under Axis control between 1933 and 1945, you can do the math.

Patricia Cohen: To address some of the issues such looting raised, the United States and more than 40 other nations adopted the 1998 Washington Conference Principles on Nazi-Confiscated Art, and the 2009 Terezin Declaration, which urge nations to decide claims “on the facts and merits” and to take historical circumstances into account when legal hurdles arise. American policymakers have frequently urged other countries to abide by these agreements.

Meanwhile, American policymakers have repeatedly refused to inject themselves into domestic ownership disputes involving cultural restitution claims, thus abandoning claimants to the formidable legal apparatus available to current possessors in the United States. Therein lies the failure of the Washington Conference of 1998 and all subsequent attempts at fostering greater understanding about looted art. How hypocritical can one be?

Patricia Cohen: In a keynote address at the Terezin conference, held in the Czech Republic, the leader of the United States delegation, Stuart E. Eizenstat, said he was concerned about the tendency to seek refuge in “technical defenses,” including the statutes of limitations.

Ambassador Eizenstat can express his many concerns for as long as he wishes but the truth remains that he does not lift a finger to apply his political weight on institutions like MOMA in the spirit of the Washington Conference of 1998 and the Holocaust-Era Assets Conference of June 2009 both of which he helped organize? Where are you, Ambassador Eizenstat, when claimants need you the most? Actions speak louder than words.

Patricia Cohen: Some lawyers who have represented MoMA and other museums in unrelated cases say that laws regarding time limits are not merely technical, but also speak to the question of whether it is possible to reconstruct an accurate historical record after a long lapse. Automatically giving claimants the benefit of the doubt can unfairly penalize honest and rightful owners, said Jo Backer Laird, a lawyer at Patterson, Belknap, Webb & Tyler, a New York firm that represents MoMA and other museums but is not currently involved in any restitution cases.

It is not in the interest of current possessors, especially institutional holders of looted cultural property, to conduct extensive, exhaustive research into the provenance of cultural objects in their collections. A recent and well-publicized restitution by the Boston Museum of Fine Arts clearly shows that, even if there are gaps in the ownership history of a painting, the critical mass of information pointing to ownership by a claimant is sufficient to incite the current possessor to return the claimed item rather than invoking hurtful, self-centered, and morally and ethically unjustifiable legal defenses in order to prevail as the current possessor.

We have not heard the last from the Grosz case. Alea jacta est…