By Andrew Cohen
Art, law, history, business, and international relations merged recently in a compelling event at Berkeley Law.
“Nazi-Confiscated Art and Its Recovery,” presented by the Art, Law, and Finance Project of the school’s Berkeley Center for Law and Business, unpacked the research and restitution process — and their many challenges — surrounding an estimated 600,000-plus works the Nazis stole between 1933 and 1945, many from Jewish families who were killed during the Holocaust.
“Nazi-looted art restitution is a topic that touches on the historical trauma and cultural identity of the victims of the Holocaust,” said Delia Violante, the project’s founder and the center’s associate director. “Restitution is not only a legal process, but also a moral imperative.”
Richard Aronowitz-Mercer, global head of restitution at the renowned auction house Christie’s, explained how museums and companies like his conduct extensive research on the creation and ownership history of art works created before the end of World War II in 1945 to ensure they weren’t seized or sold under duress.
Showing a photo of a church in Germany with Nazi-looted art stacked to nearly the ceiling, he described how the catalyst for this work came in 1998, when U.S. Ambassador Stuart Eizenstat convened a multi-day conference with representatives from 44 nations in Washington, D.C.
It led to the Washington Conference Principles on Nazi-Confiscated Art: 11 ethical guidelines for how such art should be identified, why resources should be made available to facilitate research, steps to achieve a fair solution if pre-World War II owners had art confiscated, and more.
“This shook the art and museum world seismically,” Aronowitz-Mercer said. “Before 1998, no one in the museum world and auction house world seemed to think much about what happened to the artistic objects Jews owned during the Third Reich. I began my career looking at the fronts of paintings, then I started looking at the backs — searching for stamps and symbols to provide hints at origin.”
Raising awareness
Sharon Cohen Levin, now a partner at Sullivan & Cromwell, detailed her extensive work on a highly-publicized case that spiked awareness. She was the lead prosecutor responsible for securing a $19 million settlement in the “Portrait of Wally” forfeiture case, which centered on an oil painting stolen by Nazi Party member Friedrich Welz from Jewish gallery owner Lea Bondi in 1938 — a story later made into a documentary.
Bondi and her family spent decades trying to reclaim the Egon Schiele painting, taking on the Austrian government, the Leopold Museum, and the New York Museum of Modern Art, among others. Levin worked on the case for 13 years.
“There were ups and downs and a lot of heartbreak, but in the end I think we got an incredible result,” said Levin, once called “The Babe Ruth of Forfeiture” by Forbes. “The media attention opened up the world of what happened to Jewish-owned art and its owners.”
In 1954, Bondi asked Austrian Rudolph Leopold, a known collector of Schiele pieces, to help her find the painting after he advised her that it was at the Austrian National Gallery. Instead, Leopold reportedly took it for himself.
When heirs of Bondi noticed “Portrait of Wally” at a New York Museum of Modern Art show in 1997, they asked the museum not to return it until its provenance could be determined. After the museum refused, claiming contractual obligations to the Leopold Museum, the Manhattan District Attorney’s Office subpoenaed the painting.
Levin marveled at arguments regarding claimed ownership, including one that the painting was a “gift” to Welz because Bondi did not fight when he demanded she turn over the painting to him — even though objecting would have subjected her to likely violence and even death.
“Another was an order as part of the restitution proceedings for Lea Bondi to pay Welz because he took on the ‘caretaking’ of her gallery while she was ‘away,’ ” Levin said, citing how Bondi fled to London. “It gives an idea of just how ‘fair’ these restitution courts were. Fortunately, the Wally case brought attention to what was going on with so much Jewish property and art, and opened up museum archives to researchers for the first time.”
A challenging puzzle
Berkeley Law lecturer Carla Shapreau, who teaches Art and Cultural Property Law and studies the fate of musical instruments and manuscripts during the Third Reich, unpacked the difficulties of unifying worldwide processes to implement the Washington Conference Principles.
“Of the 44 nations that endorsed the Principles, only six have adopted commissions or national processes, each with varying mechanisms to resolve ownership disputes,” she said. “The inconsistency in laws between nations is often a significant challenge in these disputes that, at times, one could argue has undermined just and fair solutions.
“Statutes of limitation, laches, the act of state doctrine, the Foreign Sovereign Immunities Act, and lack of subject matter or personal jurisdiction are examples of just some of the defenses raised in these cases. Federal and state seizure and forfeiture actions have provided additional legal approaches to restitution beyond civil disputes.”
Tracking an artwork’s ownership history before, during, and after the Nazi era presents myriad questions: Was it obtained legitimately? Is it authentic? Is it a match for an alleged lost or stolen object an owner or owner’s heirs seek to recover?
“Washington Conference Principle No. 2 prioritizes public accessibility to records and archives, yet this remains challenging in many instances,” Shapreau said. “Confiscations, transactions under duress, export restrictions, damages from allied bombing, losses as a result of wartime evacuations by the Reich … all resulted in losses we’re still trying to untangle today.”
John Alexander, director of collections and exhibitions at the Berkeley Art Museum and Pacific Film Archive (BAMPFA), was working at the New York Museum of Modern Art when Levin’s case took off.
“It was a jaw-dropping astoundment, seeing firsthand this sea change in the art world,” Alexander said. “Now, there’s been a massive alteration in the way museums borrow works of art, and how works already in their possession are addressed.”
The BAMPFA team contributed to the content of a searchable database of Nazi-era art and also spent over six months reviewing its collection, finding 76 of its works identified to have been in Europe between 1933 and 1945 with some inconclusive provenance issues.
“There’s great effort and progress in provenance research, but this subject is a long way from ever being resolved,” Alexander said. “While the process for due diligence is protracted and requires a lot of funding, it’s too important not to undertake.”