Recent Developments in Art Law

As the market value of paintings, prints and fine art has escalated in recent years, the need to prove authenticity has never been greater

Recent technology has ignited an explosion of access to information, and the impact on the art world has been profound. This development has been accompanied by an enormous rise in the market value of paintings, prints and other fine art, which has resulted in striking changes in how the art market addresses disputes as to authenticity, provenance and entitlement to once lost works.

Authenticity – Is It Genuine?

The upward spiral of fine art values has created new incentives and potential rewards for forgery. Thus, it is of great financial importance to the buyer or seller of an artwork claimed to be from the hand of a famous artist to have comfort that the attribution is correct. But conclusions on authenticity are usually no more than opinions; they are often based on the views of people considered to be experts in such matters. For example, in France, it is often the heirs of a deceased artist whose opinions are the final word on authenticity questions.

One result of increased litigation in recent years has been that auctioneers and other experts have declined to give opinions with respect to the authenticity of a work, increasingly considering it more trouble than it is worth. But some auction houses decline to market some artworks unless authenticated. The New York legislature has been considering a bill that would give protection to authenticators of artworks, but the legislation would only tighten the claimant’s burdens of pleading and proof and provide for fee-shifting in favor of a successful defendant. Thus, authenticators will continue to be reluctant to become participants in authenticity disputes, since litigation has become a common risk, and defending even a frivolous complaint is usually expensive.

Is That the Artist’s Signature?

In one case, our team advised a group of European investors who were interested in a famous work by an old master but who had been told by someone more familiar with the artist’s work that the signature seemed odd. Technology now allows rather easy investigation of artworks and signatures via computerized databases and photographs to gather a very large sampling of an artist’s works and signature for comparison. However, because the commonly published images of an artwork often fail to adequately show the artist’s signature, we engaged art students in several countries to view and take good photos of the signatures. Modern technology now makes it quite easy for such a squadron to take excellent photographs with their cell phones or similar devices and promptly forward them electronically to our team. We found a total of only two purported signatures of the artist with the same oddity as the one questioned. Extensive and time-consuming investigation regarding each of the works’ provenance showed that all of them had been sold by the same German dealer. This was suspicious to say the least, but then we found a reference in an early art essay that this dealer was believed to sometimes “improve the provenance” of works he sold. (In the art world, people often use polite euphemisms, e.g., not saying that something is a forgery, but simply that it is “not right.”) The conclusion of our investigation occurred when we noted that the signature on one of the other works actually misspelled the artist’s name. This is a common indication of forgery, called “sign  painter’s error.” The investors decided not to acquire the artwork.

Provenance

Provenance – an artwork’s lineage or pedigree – is a chronology of its ownership, exhibition and locations since the time it was created. A “good provenance”– for example, if the picture has been owned by prominent collectors, galleries or museums – is often taken as an indication of authenticity because one thinks “they would not buy it if it were not authentic.” Prominent or well-attended exhibitions of a picture are also taken as not only indications of value but also some evidence of authenticity and ownership, the logic being that an artwork would not be frequently displayed if its authenticity were questionable or if there were a dispute as to ownership. Even if not useable in court as evidence of authenticity or ownership, such evidence may be admissible to oppose a new claim of ownership on the legal doctrine of laches (prejudice caused by undue delay by a claimant in coming forth with a claim).

It is often not possible to establish a complete chain of ownership as part of a picture’s provenance, in part because prior transfers may not have been reported and there is no official registry (as there is, for example, for land transfers and automobile registrations). Many sales, even of expensive artworks, have often been poorly documented, and reports of sales by auction houses often simply state that the seller or buyer was “anonymous” or an “American [or European, or Japanese, etc.] collector.”

One case our team handled involved an early work by Willem de Kooning purchased by our client in the 1950s. The only evidence of the purchase was a simple receipt from a well-known New York gallery that the painting was sold to “Mr. and Mrs. [Name].” When, decades later, the elderly wife secretly sold the painting for more than $10 million to an undisclosed buyer, a dispute ensued as to whether she could pass good title and, if so, also keep the proceeds. The matter was eventually settled.

Archives and Databases

In Europe, provenance research has been hampered because many state archives and even court records have historically been closed to the public due to extensive privacy laws much stricter than in the United States. Since the recent litigation in the United States involving European museums (described below) and the extensive public attention they received, many European archives have now been opened. There are now also several accessible electronic databases containing provenance information. One of particular note is the Getty Provenance Index, maintained by the Getty Research Institute. It is a vast collection of digitized records that is expanded on a regular basis.

The Getty archives proved indispensable in one case handled by our team, in which we represented the heirs (now living in the United States) of a famous German artist seeking recovery of a painting that had been taken in 1943 by the Nazi Schutzstaffel, or SS. The possessor of the painting, a European, sent it to New York to be auctioned, contending that he inherited it from his father. After we filed our suit, he alleged that his father had been a good-faith purchaser after World War II at an auction in Germany, and then had possessed the painting for many years, giving him good title under civil law. This principle (German: Ersitzung) is common in civil law countries. The son identified the German auction house and the date of his father’s alleged purchase at auction. Our investigation ultimately produced a copy of the actual auction catalog from the 1950s in the archives of the Getty Research Institute. It confirmed that other paintings by the artist in question had been sold at the auction, but not the one we sought to reclaim. The case promptly settled and the painting was delivered to the artist’s heirs.

Post-World War II Restitution Claims

After World War II, West Germany established programs for reparations and restitution to victims of the Nazi era, funded with billions of deutsche marks. But relatively few of the countless victims whose property was taken under duress, or their heirs, filed claims. Those who did file claims benefited from relaxed burdens of proof, and some received compensation awards even if their artworks could not be found.

The pursuit of such restitution claims changed, beginning in the 1990s. In that decade, claims and class actions were brought in the United States against German companies or their subsidiaries by victims (or their heirs) who had been subjected to forced labor in Europe before and during World War II. More than one million such victims were still alive in 1999, and Germany established a compensation program for them funded with more than four billion euros. With the heightened awareness and public attention to wartime wrongs of the Nazi era, focus was brought to bear on the taking of artworks and other property from Jews and others. These forced takings had occurred before and during the war, including when the victims sought to leave Germany or Nazi-occupied countries. Some suits were brought in the United States, but court jurisdiction over such cases was problematic. Unless the artwork or other property was now located in the United States, or the current owner could be sued here, it was difficult for a United States court to assert jurisdiction in the case.

A tidal change in the public mind occurred in 1998, when a case brought in New York City successfully restrained the return to an Austrian museum of a painting in a large collection that was on special exhibition at the Museum of Modern Art (MoMA). The U.S. Attorney based the restraint on the theory that the painting was “stolen property” because it had been taken under duress in 1938 by a long-deceased Nazi art dealer from a Jewish dealer in Vienna, and that the painting was illegally imported into the United States for the MoMA exhibition in violation of the U.S. National Stolen Property Act.

This was not a complaint by the heirs of the victim (who had died in London long after leaving Austria), but by the U.S. Attorney, who claimed the painting was subject to forfeiture to the U.S. government, which could then turn it over to the heirs of the Jewish dealer. The federal court in New York initially dismissed the case because the Austrian museum showed that the painting had been recovered from the Nazi dealer by the U.S. forces shortly after the war, so it was no longer “stolen” property subject to forfeiture when imported to New York for the MoMA exhibition 60 years later. The dismissal was superseded by ensuing proceedings, and after years of litigation the case was settled and the property returned to the Vienna museum. The case received much attention when it was filed, including long articles in the mainstream press.

Subsequent to the filing of the MoMA case, 49 nations adopted the so-called “Washington Principles,” a nonbinding agreement, paragraph 8 of which states: “If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.”

Although the agreement is very general and does not have the force of law, at least one court decision has opined that it is consistent with the foreign policy of the United States. In 2004, the U.S. Supreme Court issued a landmark decision in litigation against the Republic of Austria for recovery of Gustav Klimt paintings in a Vienna museum that had been owned by the plaintiff’s relative before the war. The Court ruled for the first time that the Foreign Sovereign Immunities Act of 1976 retroactively applied and permitted a lawsuit challenging actions that occurred in Austria decades earlier during the Nazi era.

The decision was highly publicized and has been dramatized recently in the film Woman in Gold. The decision resulted in similar lawsuits in the United States against foreign countries and their instrumentalities, including Hungary, Spain and the Netherlands. In the case filed against Spain and its alleged instrumentality (a museum in Madrid), a federal district court recently granted summary judgment dismissing the complaint. The court held that Spain’s adverse possession laws were applicable and that the museum had possessed the painting as owner publicly, peacefully and continuously for more than the statutory number of years, thus acquiring full ownership.

Interestingly, despite – or perhaps because of – the failure of victims or their heirs to pursue restitution claims, companies have now sprung up that use modern computer technology to search worldwide for possible distant relatives of victims, whom such companies offer to represent. At least one lawsuit in the United States resulting from such activities has been filed, and it remains to be seen if there will be more.

The Gurlitt Trove

One of the most dramatic recent events in the world of artwork restitution is the 2013 disclosure that the German government found more than 1,400 artworks in the Munich apartment of Cornelius Gurlitt, the 81-year-old son of an art dealer for Hitler. The trove included works by Chagall, Picasso, Matisse and others. Some 200 additional artworks were subsequently found and seized in Gurlitt’s Salzburg, Austria home, including works by Renoir, Monet and other French impressionists.

Gurlitt died in 2014 and willed the entire collection to the Kunstmuseum Bern in Switzerland. A contest to his will has recently been rejected (the decision is being appealed), and the Bern museum has announced that artworks will be “restituted soon” to families from whom they were taken during the Nazi era. A Gurlitt Task Force has been established to make recommendations on individual restitutions, but so far it has issued only four such recommendations.

Much remains to be done concerning the Gurlitt collection, but it seems unlikely that the restitution issues will be decided in U.S. courts. The artworks are all in Europe, and a procedure has been established there to pass on restitution claims. One heir living in the United States filed suit in 2014 against the Federal Republic of Germany and the State of Bavaria, but the defendants have filed a motion to dismiss, and the parties announced in April 2015 that they have settled this case. Subject to approval by a German court, the U.S. case will be dismissed.