Art Law Report

New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné

Posted by Nicholas O'Donnell on October 21, 2016 at 11:45 AM
For several years the topic of litigation against appraisers and authenticators has been a controversial issue, causing a number of artists’ foundations and independent professionals to refrain from giving opinions for fear of litigation, even in which they eventually prevail.  A new lawsuit against the Agnes Martin Authentication Committee underscores the importance of a pending bill in New York to shield such authenticators from liability, and the problems inherent in the status quo.  This lawsuit appears likely headed for failure just like every other similar authentication lawsuit, but that will come as cold comfort to the defendants years hence.
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Topics: authentication, catalogue raisonné, Alexander Calder, Keith Haring Foundation, New York City Bar Association, connoisseurship, Andy Warhol Foundation for the Visual Arts, Mayor Gallery Ltd, Agnes Martin, Peter Doig

"Risks in the Attribution of Works of Art": November 8, 2016 in Geneva

Posted by Nicholas O'Donnell on October 20, 2016 at 11:14 AM

On November 8, 2016, a conference will take place organized jointly by the Art Law Foundation and the Art-Law Centre of the University of Geneva entitled Risks in the attribution of works of art: expert practices and legal considerations.  These organizations have steadly put forth multiple events per year that stand out for their breadth and substance.  Registration and further information are available here for this event, which promises to be another top-level presentation.  The general program (my translation) is below: 

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Topics: authentication, Events, Attribution

Event: DePaul Moot Court Competition in Cultural Property in February

Posted by Nicholas O'Donnell on October 20, 2016 at 11:09 AM

The details are out on the annual National Cultural Heritage Law Moot Court Competition at DePaul College of Law in Chicago.  Information and registration are available here.  DePaul features one of the preeminent legal curricula about cultural property, and reliably puts out terrific programming.  One such event is the annual moot court competition, for which interested volunteers and judges are always welcome.  Previous topics have included the always-contentious scope of the Foreign Sovereign Immunities Act on cultural disputes, theNative American Graves Protection and Repatriation Act and the Takings Clause of the Fifth Amendment; the constitutionality of the Theft of Major Artwork Act, which was passed under the Commerce Clause; the Immunity from Seizure Act and the equitable defense of laches; and the mens rea requirement and extraterritorial application of the Archaeological Resources Protection Act.

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Topics: Events

Restitution Claims Resolved in New York and Cologne, New Case Filed Against Germany

Posted by Nicholas O'Donnell on September 29, 2016 at 11:51 AM

Word came this week of two resolutions of claims to Nazi-looted art in museums in New York and Cologne, and a new Nazi-looted claim against Germany filed in Washington.  Barely a month after the Neue Galerie (of Austrian and German art) in New York announced that it had discovered a “major work” in its collection had a clouded history, the museum announced an agreement concerning the Karl Schmitt-Rotloff painting Nude (1914).  It is not known if the Schmitt-Rotloff is the same work to which the museum referred last month.  Around the same time, the Wallraff-Richartz-Museum in Cologne, Germany, announced that it had agreed to return a drawing by Adolf Menzel that had been sold to Hildebrand Gurlitt as its owners fled Nazi Germany in the 1930s.  Blick über die Dächer von Schandau (View over the rooves of Schandau) (1886) will be retuned to the heirs of Hamburg attorney Albert Martin Wolffson and his daughter Elsa Helene Cohen.  These settlements are examples of constructive dialogue and enlightened treatment of the historical fact.  The new litigation likely means the opposite approach from the German defendants.

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Topics: Cologne, Schwabinger Kunstfund, Breslau, Gurlitt Task Force, Germany, Wallraf-Richartz Museum, Nazi-looted art, 28 U.S.C. 1605(a)(3), Gurlitt, David Toren, Neue Galerie, Ernst Ludwig Kirchner, New York, Karl Schmitt-Rotloff, Alfred and Tekla Hess, Streen Scene in Berlin, Adolf Menzel, Strassenzene

Restitution Legislation: HEAR Act and Foreign Cultural Exchange Jurisdictional Clarification Act Move Forward

Posted by Nicholas O'Donnell on September 18, 2016 at 5:13 PM


Two restitution related bills have advanced past the Judiciary Committee of the United States Senate: the Holocaust Expropriated Art Act (S.B. 2763, the HEAR Act), and the Foreign Cultural Exchange Jurisdictional Clarification Act, S.B. 3155.  Their advancement for consideration by the full Senate is interesting since in many ways they are at cross purposes with each other.  The analytical coverage of each has also been somewhat frustrating insofar as much of the reasons expounded by their proponents do not really describe what the bills would do.  The HEAR Act would not restitute any Nazi looted art, rather, it would harmonize as federal law the statute of limitations on such claims.  The Foreign Cultural Exchange Jurisdictional Clarification Act would not “reward” Russia or other foreign museums with art claimed by others, it would eliminate a jurisdictional scenario that has only happened once.  The fact is that both bills are of dubious merit because they are of limited effect, and may cause more harm than good.

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Topics: Legislation, Nazi-looted art, FSIA, Restitution, World War II, IFSA, HEAR Act, Ted Cruz, S.B. 2763, S.B. 3155, Foreign Cultural Exchange, Jurisdictional Clarification Act

Making Sense of the Peter Doig Trial and the Authentication Fallout

Posted by Nicholas O'Donnell on August 25, 2016 at 11:36 AM

As was reported in detail by the New York Times and others earlier this week, artist Peter Doig prevailed in what most agree was the strangest art related trial in many years. In a nutshell, Doig was accused by a former corrections officer from Canada of falsely denying authorship of a painting in the plaintiff's possession, such that (according to the plaintiff), the painting lost all value.  The case was, and still is, a real problem for artists for many reasons.  Among them is that in a world of fakes and forgeries, a living artist could find him or herself the target of a shakedown.  It also spotlights yet another gap in the kind of rights that the Visual Artists Rights Act (VARA) was perhaps intended to protect.  Given the vehemence of the opinion finding in Doig's favor, do not be surprised to see a motion for attorney's fees by Doig arguing that the case was brought in bad faith.

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Topics: authentication, Peter Doig, peter Bartlow, Robert Fletcher

Norton Simon Museum Prevails Against Von Saher Claim to Cranachs Looted by the Nazis

Posted by Nicholas O'Donnell on August 16, 2016 at 3:36 PM

Just as it appeared that the first trial in years would begin next month on a claim of Nazi-looted art, the much publicized Von Saher case has come to an end with a judgment that entered yesterday.  The U.S. District Court awarded the Norton Simon Museum summary judgment on the claims to ownership of Adam and Eve by Lucas Cranach the Elder, ending pending further appeal a nearly decade-old litigation.  Over the years, the Von Saher case has made new law about statutes of limitations, constitutional law, and the scope of U.S. foreign policy as it impacts the courts.  Like the Cassirer case last year, it is a bitter blow for the claimants who labored for years to recover the paintings and for whom it appeared their day in court had arrived.  This is all the more so because there was no dispute in the briefing that the paintings had been expropriated by Hermann Göring’s rapacious henchman.    

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Topics: Norton Simon Museum, Alois Miedl, Jacques Goudstikker, Nazi-looted art, Hermann Goering, NS Raubkunst, Restitution, Marei Von Saher, World War II

More of the Same—Latest Limbach Commission “Reform” is Anything But

Posted by Nicholas O'Donnell on August 11, 2016 at 11:33 AM

Supposed Changes to German Advisory Commission on Nazi Looted Art Short on Specifics

There have been a number of articles this week indicating that Germany intends to reform the “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property” (Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz) that is charged with making recommendations to German museums on claims for art allegedly looted or bought under duress during the Nazi era.  Yet the most astonishing part of the news is that it is no news at all.  It is merely a repetition—if that—of what was promised in March.  Only now it is not even a promise, it is an indication that proposals may be forthcoming at some indefinite point in the future.  It is further evidence that the entire endeavor does not deserve to be taken seriously.  At best, the “reforms” would address some of the appalling discriminatory comments made earlier this year.  But nothing proposed so far would compel a museum to submit to the commission, about which Bavaria in particular—the federal state that isin the midst of its own scandal for returning art to actual Nazis while giving heirs the runaround—notoriously refuses even to appear before the commission

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Topics: Alfred Flechtheim, Germany, Nazi-looted art, Advisory Commission, Gurlitt, NS Raubkunst, Restitution, Bavaria, World War II, Limbach Commission

Methinks Thou Doth Protest too Much—Bavaria Scrambles Defensively After Revelation of Looted Art Sales to Nazi Families

Posted by Nicholas O'Donnell on July 1, 2016 at 5:50 AM

The revelation that Bavaria re-sold looted artworks to Nazi families while giving victims and their heirs the run-around for years has clearly touched a nerve at the Bavarian State Paintings Collection (the Bayerische Staatsgemäldesammlungen, or BSGS). Days after the Sueddeutsche Zeitung exposed that the Commission for Looted Art in Europe (CLAE) had given the lie to years of deception by the BSGS, the BSGS issued a long, rambling, and defensive statement in defense of its actions.  The statement is a classic case of misdirection.  Reaction to the story and the BSGS response can be found at the Observerand the Telegraph

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Topics: Bayern, Nazi-looted art, Commission for Looted Art in Europe, Restitution, Bavaria, World War II, Raubkunst, Bayerische Staatsgemäldesammlungen

Another Bombshell in Munich—Bavarian Government Sold Looted Art to Nazi Families

Posted by Nicholas O'Donnell on June 26, 2016 at 4:49 PM

Works returned by Monuments Men to Bavaria for restitution to victims instead sold to Nazis’ families

Journalists Catrin Lorch Jörg Häntzschel published this weekend an explosive revelation in Sueddeutsche Zeitung entitled “the Munich Looted Art Bazaar,” reporting on the work of the Commission for Looted Art in Europe (CLAE): the government of Bavaria sold artworks returned to it after World War II by the famed Monuments Men that were supposed to be restituted to the victims of Nazi looting.  Not only was the art given back to the German state on the explicit condition that it be restituted to the victims of Nazi art plunder, in some cases it was literally returned to the families of Nazi officials, such as Emmy Goering (Hermann’s daughter) and Henriette von Schirach rather than to the victims themselves.  Less than a month after the Federal Republic of Germany’s toxic and revisionist reply brief in the Welfenschatz case (which argued, among other things, that individual claimants cannot sue because the U.S. policy was this national level restitution), the ramifications are far reaching for Germany’s self-professed adherence to the Washington Conference Principles on Nazi Looted Art of 1998.  While the specific artwork in question may be less significant than most of the works found in Cornelius Gurlitt’s apartment four years ago, the revelation is in many ways much, much worse.  The CLAE scholarship that lead to this schocking development cannot be praised enough. 

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Topics: Monuments Men, Nazi-looted art, Munich, Gurlitt, NS Raubkunst, Restitution, World War II

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