By Professor Ori Z. Soltes
The Metropolitan Museum of Art will keep a Picasso sold by a man fleeing the Axis, Reuters reported. A federal appeals court ruled last week that his heirs waited too long to request the return of the painting, sold to the Met 58 years ago. Reclaiming Nazi-stolen art has a long and complicated past worldwide.
The Nazis stole everything from silverware to buildings. They stole drawings; paintings; and statuary, in particular, to show that by possessing such objects they were civilized, not barbaric. The issue of art theft and looting was largely ignored after World War II for diverse reasons, including the notion that in a world quickly slipping into the Cold War period, today’s Communists became a more important concern than yesterday’s Nazis. The subject of plundered cultural property only re-emerged in the 1990s. The B’nai B’rith Klutznick National Jewish Museum convened a conference on the subject in 1997, which culminated with the so-called Washington Conference of December 1998, in which 44 countries spent three days discussing how to go forward in a more cooperative effort to bring justice to survivors and heirs who might have claims that had been evolving for more than half a century. Dozens of cases have emerged in the United States and Europe in the two decades since that time.
Good Faith vs. Bad Title
At first glance, returning stolen art may seem like a cut-and-dry endeavor, but it’s rarely so simple. Most cases are complicated by any number of factors: Was a given work simply stolen or was its owner forced to “sell” it to the Nazis at a fraction of its value—and was the victim even permitted to access the money? Between the moment of loss and the time of an ownership claim, through how many hands might the work have passed? What are the legal versus moral issues that encompass the case?
In Anglo-American law, for instance, “bad title” does not pass from one owner to the next: If you stole a painting and sell it to me, and the owner from whom you stole it comes to me and demands the work back, I am legally bound to return it. It is not mine, since it did not belong to the one from whom I purchased it. On the European continent, if I bought it in “good faith,” believing that you owned it and didn’t steal it, I am not liable to the one from whom you stole it. In neither case is the moral issue necessarily the same as the legal issue.
The Cassirer Pissarro
Cases like the Met’s Picasso have some precedent. In 1939, Kristalnacht, Lilly and Fritz Cassirer realized that, as Jews, they should leave Germany to survive. The only way they would be permitted to leave was if they sold their 1897 Pissarro oil, “Rue-St-Honore, Afternoon, Effect of Rain,” to a Nazi dealer, Jakob Scheidmeier for $360. Although they were allowed to leave, they never were able to access the German bank account into which the funds were placed. Having survived the war, Lily eventually approached the new West German government for compensation, and in 1958 received the $13,000 that was then regarded as the market value of the painting; then the case was considered closed, although she did not waive her right to continue the search for the painting.
Lilly died in 1962. Her grandson, Claude, became a successful photographer in Cleveland. In 1999, he heard from a friend that the latter had seen the Pissarro hanging in the Thyssen Bornemisza Museum in Madrid. It turns out that the Baron Thyssen Bornemisza had acquired the painting in 1976 from the Stephen Hahn Gallery in NYC, but the Cassirers assert that the Baron never properly investigated the painting’s provenance.
In 2001, Claude Cassirer brought his claim before the Museum for the first time and the following year formal legal discussions began. Neither the museum nor its government were particularly responsive: their view was (and is) that the museum acquired the work in good faith, and that it had done reasonable provenance research on the Baron’s works—that after such a long time and extended series of owners its possession of the Pissarro is absolutely legitimate.
This case reached its apparent conclusion in a 2019 ruling by Los Angeles Federal Judge John Walter that the Cassirer family can no longer seek restitution from the Spanish museum, citing in part the length of the time the family took to pursue legal action, just like in the Picasso case. In the end, his ruling hinged on a legal technicality, regarding where the case could be resolved and, therefore, what understanding of the law regarding “title” and “good/bad faith purchase” applied.
The Picasso at the Met and the Pissarro in Spain, both ruled on this year, show examples of a kind of restitution-based statute of limitations ultimately deciding the fates of Nazi-stolen art. Whether the rulings will dissuade or embolden other survivors and heirs with similar stories from pursuing restitution for World War II-era injustices remains to be seen.
Dr. Ori Z. Soltes is Goldman Professorial Lecturer in Theology and Fine Arts at Georgetown University. He is the former director and curator of the B’nai B’rith Klutznick National Jewish Museum in Washington, D.C. He earned his B.A. in Philosophy from Haverford College, his M.A. in Classics from Princeton, and his Ph.D. in Interdisciplinary Studies from Union Institute and University.