Federal Bar Association ND Ohio IP Crimes Seminar on Nazi Art Looting

“This is such a gigantic issue,” Cleveland Museum of Art Director Robert P. Bergman said. ``We're talking about hundreds of thousands of objects. I believe that for the rest of my professional career, this issue will face the museums of the world.'' (AP/Akron Beacon Journal 3/1/1998). Bergman died at age 54 in 1999 after a two-week illness of a rare blood disorder (NY Times 5/7/99).

Murder & the Mystery of Egon Schiele’s Dead City Nazi Art Looting and Swiss Laundering of Stolen Artworks Federal Bar Association, Northern District of Ohio Chapter February 5, 2009 Carl B. Stokes U.S. Courthouse Cleveland, Ohio Raymond J. Dowd Dunnington Bartholow & Miller LLP

Recent Holocaust Art Cases • Altmann v. Austria (Austria not immune sovereign under FSIA) • Vineberg v. Bissonette (1st Cir. 2008) (summary judgment on duress sale) • Von Saher v. Norton Simon Museum (California extension of statutes of limitations unconstitutional) (appeal pending) • U.S. v. Portrait of Wally (1999 seizure pending) • Museum of Modern Art v. Schoeps (German and New York law apply to duress sale in Germany) (Feb 2009 trial) • Museum of Fine Arts Boston v. Seger-Thomschitz (suit for demand of artwork) • Bakalar v. Vavra (Estate of Fritz Grunbaum)(applying Swiss law) (on appeal) • Westfield v. Fed. Rep. of Germany, (Nashville TN Chancery)(damages against Germany)(filed 10/2008)

Fernand Leger’s 1911 “Smoke Over Rooftops” Restituted to Heirs of Alphonse Kann by Minneapolis Institute of Arts – October 30, 2008

Egon Schiele’s Portrait of Wally – 1998 Morgenthau Seizure from MOMA as stolen --- with Fritz Grunbaum’s Dead City

1999 Seizure Quashed, U.S. Attorney Seizes Portrait of Wally • New York Court of Appeals quashes D.A. Morgenthau’s subpoena of Portrait of Wally and Dead City • Orders MOMA to return artworks to Austria • Next day, U.S. Attorney seizes Wally • Missing heirs for Grunbaum’s Dead City – returned to Austria, now at Leopold Museum in Vienna • Portrait of Wally case still pending 11 years later before Judge Preska in the SDNY

1999 Morgenthau Seizure • Tremendous international scandal • Led to Austria opening archives • Austria reformed laws to permit claims to stolen art in museums only • Led to Washington conference on stolen art • Museums agreed to “Washington Principles” – research their collections, favorable evidentiary burdens, encouraging heirs to come forward • www.lootedartcommission.com/Washington- principles

Scope of current Nazi-art problem • “the amount of research to be undertaken on the tens of thousands of works of art that, by definition, may have Nazi-era provenance problems is significant, requiring large allocations of staff time and money, allocations U.S. art museums have made and will make until the job is done.” - Testimony of AAMD President James Cuno to Congress July 27, 2006

Reading a Provenance • Catalogue raisonné – comprehensive listing of an artist’s oeuvre (body of works) • Image (Dimensions) • Description • Name (may vary from owner) • Provenience (an object’s source) • Provenance (former owners) • Where exhibited or published

Cleveland Museum of Art • 615 European paintings and 268 sculptures produced before 1945 • 260 paintings and 182 sculptures excluded because in U.S. or acquired pre-1933 • Source:http://www.clemusart.com/provena nce/prov_search.asp (last checked 1/24/2009) • 425 artworks with missing provenances

“We have no reason to believe any of these works have serious provenance problems.”

Why Are The Equities Against Mona Lisa Possessors Who Conceal or Have Missing Provenance Information? -Unique chattel, famous and recognizable cannot be sold if stolen -Unique chattel, famous owner, but not famous object, may be “hiding in plain sight” -By concealing a famous former owner, blocks heirs from identifying the chattel -Custom and practice of art dealers to exercise extreme care in preserving documentation of provenance -Artwork with missing paperwork drops drastically in value, automatically suspicious -Acquirer in position to check provenance at purchase, unclean hands if doesn’t Apples & Oranges

Burden of claimants • In New York, when a property owner reclaims property, the burden of proof shifts to the holder of the property to prove that the property was acquired lawfully. Guggenheim v. Lubell , 153 A.D.2d 143, 153, 550 N.Y.S.2d 618, 624 (First Dept. 1990) aff’d 77 N.Y.2d 311, 321 (1991).

NY Law Permits Owners To Trap Thieves “According to the [Guggenheim] museum, […] publicizing a theft exposes gaps in security and can lead to more thefts; the museum also argues that publicity often pushes a missing painting further underground. In light of the fact that members of the art community have apparently not reached a consensus on the best way to retrieve stolen art [ …], it would be particularly inappropriate for this Court to spell out arbitrary rules of conduct that all true owners of stolen art work would have to follow to the letter if they wanted to preserve their right to pursue a cause of action in replevin.” Guggenheim v. Lubell, 77 N.Y.2d 311, 320 (N.Y. 1991)

Entartete Kunst “Degenerate Art” In 1937, the Nazis declared a large number of artworks as “degenerate” if “un-German” or Jewish. To mock “degenerate” artists, the Nazis presented “Entartete Kunst” a traveling art exhibit, in 1937. Degenerate art was stripped from museum, artists boycotted or exiled. Hitler visits the Entartete Kunst exhibit in 1937

Hitler Invades Austria March 12, 1938 The Nazis reach Vienna Hitler salutes his troops marching into Austria

Fritz Grunbaum Born April 7, 1880 Brno, Moravia Turned back at Czech border, arrested by the Gestapo on March 20 1938 Deported to Dachau Concentration Camp, where he died on January 14, 1941

www.imdb.com -Famous film star Berlin -Famous cabaret performer -Famous writer Part of Austria’s “Abbott & Costello” – style comedy team

Fritz at Dachau While at Dachau, Fritz and other prisoners participated in Cabaret performances to keep spirits up. Performances were supported by the Nazis and scheduled on the same day as trains taking prisoners to death camps.

At least nine percent of the Nazi total government budget in 1938-39 was stolen from Jews (approximately 1.5 billion Reichsmarks). Aly, Goetz, Hitler’s Beneficiaries (Metropolitan Books 2006) at 48.

Nazi Finance Ministry Report on Jewish Property, November 18, 1938 (Mobilization of Jewish Assets for the Reich)

Nazi Finance Ministry Report “Other Property” Refers to Category IV in Jewish Property Declarations 1. Shows Nazis considered Jewish art collections “available to the Reich” and liquid assets 2. Shows Nazis liquidating Jewish art collections to finance war machine as of November 18, 1938

Dachau Fritz was arrested in March of 1938, sent to Dachau, then to Buchenwald concentration camp, and back to Dachau where he died on January 14, 1941.

Minsk Lily Grunbaum was deported to Minsk where she died on October 5, 1942. Minsk was a death camp. “Warning: anyone climbing the fence will be shot”

Powers of Attorney “There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.” - U.S. Consul General in Vienna

Grunbaum’s Dachau Power of Attorney • July 1938 - Fritz Grunbaum executes a power of attorney permitting his wife to liquidate his property, including life insurance policies • 1946 Austrian Nullification Act – Austria nullifies all transactions flowing from powers of attorney executed by concentration camp inmates

Jewish Property Declarations • April 26, 1938 Law - penalty of imprisonment/confiscation • Required for Jews with over 5,000 RM • Filed every three months until property gone or left Reich • November 12, 1938 Property became available to the Reich • Systematically liquidated through Aryan trustees • Art Collection Category IV “Other Property”

Kieslinger Inventory July 20, 1938 • Nazi art historian Franz Kieslinger inventories Fritz Grunbaum’s art collection on July 20, 1983, while Fritz is in Dachau. • Identifies 5 Schiele oils by name, including Dead City • 55 Schiele Color drawings (no titles listed) • 20 Schiele Sketches (no titles) • 1 Lithograph • Kieslinger valued Art Collection at 5,791 RM

Dead City III - JK 213

Vienna’s Dorotheum Sales Outlet for Stolen Jewish Property • Sotheby’s: “a clearinghouse for the Gestapo” • Kieslinger was a Dorotheum expert • Kieslinger became a notorious Nazi art looter • Shows opportunity, motive and probability

Schenker Export Application September 8, 1938 • Elizabeth Grunbaum submits while Fritz in Dachau • Stamped with Swastikas by Nazi functionary Otto Demus on or around September 8, 1938. • Roughly same number of artworks as Kieslinger Inventory (three envelopes of graphics). • Export license expired December 8, 1938. • No customs stamps indicating collection left Vienna during WWII. • No BDA export licenses during Nazi era, indicating collection did not leave Austria during WW II.

Letter dated January 31, 1939 Establishes Lily and Fritz lost legal control of assets practical ability to transfer any assets as of January 31, 1939

Evidence Fritz’s Art Collection Stolen • Art collection Category IV (“Other Property”) • “Gesperrt” stamp in Category IV • “Erledigt” stamp in Category IV • Shows Nazis considered Grunbaum “case closed”

Grunbaum Assets 1938-1942 (Per Jewish Property Declarations)

Significance of 81 Schieles • Rare, exotic and “racy” collection • Each artwork unique • Catalogue raisonnée shows only 76 Schiele collectors and dealers who knew the artist • Catalogue raisonnée shows only 26 major collectors, dealers after Schiele’s death (including Grunbaum) • Small competitive group of collectors who knew each other • Provenance paperwork critical to establish value of these artworks • Rare stolen works could not be sold while witnesses alive Egon Schiele’s “Dead City” 1911

Swiss Financing of Nazi Art Sales

Bern, Switzerland April 24, 1956

Eberhard Kornfeld Gutekunst & Klipstein Kornfeld & Klipstein Klipstein & Assocs. Galerie Kornfeld

Galerie Kornfeld to Sotheby’s Legant February 14, 2005 • Kornfeld claims no written documentation of acquisition P. Ex. 120 at DBM 2400

5/22/56 Bound Inventory Volume There is no seller listed in ink

Receipt dated April 24, 1956 Excluded notation Pencil signature No invoice

Purported Acquisition of Dead City April 24, 1956 • 4/24/1956 – Kornfeld paid cash for Dead City and 45 other Schieles • Receipt signed in pencil • Receipt was payment for “4/24/1956 Invoice” (missing) • Payment was for 2/7/1956 delivery of 20 Schieles and 25 additional Schieles including Dead City entered in EK inventory on 5/22/1956 with 23 other Schieles • Seller’s name not recorded • “Lukacs” added later in pencil

Kornfeld 1956 Schiele Catalog #1 Dead City with provenance from Otto Kallir’s 1930 catalogue raisonnée 53 other Schieles with no provenance listed Kornfeld testifies that all Schieles in ’56 catalog came from Grunbaum

Kornfeld’s Acquisitions for Personal Collection - Red Blouse - JK 1394 • K 28

Portrait of the Art Critic Arthur Roessler JK 1631 Female Nude with Raised dress -JK 1308 • K 31

Chief Inspector Benesch - JK 2098 • K 43 H20 DBM(06366)

Otto Kallir 1923 - Neue Galerie, Vienna 1939 – Galerie St. Etienne, New York

Otto Kallir’s 1930 Catalogue Raisonée Shows Grunbaum’s Ownership • Grunbaum’s Vienna Dealer founder Neue Galerie • Borrowed Dead City and 25 Schieles including Girl with Black Hair from FG’s collection in 1928 for Hagenbund Show • Kallir Moved To New York in 1939 • 1955 Kallir co-published Kollwitz catalogue raisonnée with Kornfeld Egon Schiele’s “Dead City” 1911

Dead City’s Provenance Published in ’56 Kornfeld Catalog Shows: 1925 Wurthle Exhibition, 1928 Hagenbund Exhibition and Fritz Grunbaum’s Ownership • K 01 H DBM(06366) OK30 94 H DBM(06366)

Pre-War Publications Showing Kallir Knew Dead City and Girl With Black Hair Were Grunbaum’s • 1928 Hagenbund/Neue Galerie correspondence between Fritz Grunbaum and Otto Kallir • 1925 Wurthle Gallery Catalog • 1930 Otto Kallir Catalog Raisonnee

Other ’56 Kornfeld Catalog Works appearing in 1925 Wurthle Catalog 1. Portrait of a Boy/ Two Female Nude with Drapery K7 W 52 2. Town on the Blue River K9 W 51 3. Seated Girl K 11 W 63 4. Girl with Black Hair K 14 W 60 5. Two Proletarian Children K 18 W 47 6. Standing Woman (Prostitute) K 23 W 73 K 26 W 78 7. Standing Man Draped in Red Shawl K 29 W 84 8. Boy in Sailor Suit K 33 W 86 9. Reclining Female Nude on Red Carpet K 37 W 112 10.Aunt and Nephew K 39 W 117 11.Russian Prisoner of War / Standing Nude Couple K 41 W 98 12.Sunflower K 42 W 118 13.Portrait of a Man K 46 W 119 14.Mountain Landscape

New York, New York April 24, 1956 – 147 Days Later

Sale of Dead City from Kornfeld to Otto Kallir September 18, 1956 K 51 The Bakalar Drawing K 1 Fritz Grunbaum’s Dead City

Ohio, 1958 Otto Kallir to Oberlin College

Litt, Steven: Paintings In Oberlin Linked to War Looting The Plain Dealer, March 1, 1998 • “The Schiele drawing, which depicts a young woman nude from the waist up, may have been looted by the Nazis from the collection of Fritz Grunbaum, who died in Dachau in 1940” • “Rudolph Leopold, benefactor of the Leopold Museum, has said that in addition to Dead City, 16 other Schieles in American museums, including the drawing in Oberlin, share the same ownership history.” (emphasis supplied)

Kornfeld 1956 Schiele Catalog #14 – Girl With Black Hair

Sale of Girl with Black Hair on the same September 18, 1956 Invoice with Dead City K 14 Girl with Black Hair

Girl with Black Hair - JK 861 • K 14 H6 DBM (1802) (Neue Galerie/Hagenbund 1928 Receipt_ • W 60 (1925 documentation of Sitzendes Madchen)

1925 Wurthle and 1928 Hagenbund Provenances of Girl with Black Hair 1928 Neue Galerie Receipt List of 1925 Wurthle Catalog Provenance Works from Fritz Grunbaum

“To the extent that the Drawing may have been lost or stolen at some point prior to Kornfeld’s purchase, any absolute claims to the property expired five years later, in 1961.” Bakalar v. Vavra 2008 WL 4067335 (S.D.N.Y. September 2, 2008)(applying Swiss five-year statute of limitations)

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Federal Bar Association ND Ohio IP Crimes Seminar on Nazi Art Looting

by Raymond Dowd on Aug 24, 2009

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Federal Bar Association ND Ohio IP Crimes Seminar on Nazi Art Looting — Presentation Transcript