Kunstraub: Contemporary Litigation in the Aftermath of the Nazi Art Plunder

Abstract

The Nazi Art Theft Movement resulted in the theft and destruction of hundreds of thousands of art pieces. This widespread theft movement still affects contemporary victims as many of these stolen items are sold and bought by art collectors and museums, creating legal barriers that prevent victims and their families from reclaiming their stolen possessions. This paper examines the Nazi Art Theft Movement and the resounding effect it still has in contemporary society while simultaneously proposing that a change needs to occur within the court system in order to set a precedent for the legal acquirement and sale of these artworks. It is proposed that U.S. courts could waive the statute of limitations upon which “laches defense” is functioning, with families and activists using the combined use of grassroots activism and the state appellate court systems in order for previous owners of Nazi-looted art to be given a fair opportunity to regain their stolen possessions.

Introduction

By the conclusion of World War II, as many works of art were displaced, transported, and stolen under the Reich Administration as during the entirety of the Napoleonic Wars (Feliciano, 23). Throughout history, the possession (or seizure) of valuable things from someone else is both a source and symbol of personal and political authority (Sheehan xii). The Germans, who have been prominent among both the victims and perpetrators of artistic plunder, call the looting of art kunstraub (Sheehan xii). Examples of kunstraub are present throughout history, coinciding with conflict and warfare. However, the mass kunstraub executed by the Nazi Party is significant not only for the magnitude of art that was stolen but for the legacy of litigation and legislation that is still prominent in twenty-first-century society.

Before the War: A Prelude to Mass Theft

The Nazi Art Plunder stands out for being methodically implemented during, after, and in the years preceding combat. To Hilter, art was equally as important as gaining political power; Hitler recognized that art was a key factor obstructing his plans to reshape Germany. As the Nazi Party gained prominence, Hitler promoted what he considered to be “authentic national art” to the German public: art created by painters and sculptors whose style and subject matter expressed “true German sensibilities” of German nationalism (Sheehan xix). Concurrent to this was the denouncement and destruction of “corrupt modern works” that conflicted with the new image the Nazi Party had for Germany; this was mainly implemented through the banning, canceling, and censure of modern art exhibitions (Sheehan xix).

In 1926, an Expressionist exhibition in Dresden was condemned for accusations of the artists insulting the German Army with their works (Nicholas 9). The German Artists League criticized the Nationalgalerie for raising money to buy “Van Gogh’s” over German works, and the director of the Zwickau Museum was fired for “pursuing an artistic policy affronting the healthy folk feeling of Germany” (Nicholas 9). Beginning in 1933, private domestic galleries came under scrutiny, with as many as 16,000 works being removed and sold abroad to raise funds for various Nazi projects; those that weren’t sold were publicly burned in Berlin in a “public act of purification” (Sheehan xx). It came with little surprise that following these events was a large-scale forced seizure of art from German citizens.

On June 30, 1937, under the command of Adolf Ziegler, approximately 12,000 drawings and 5,000 paintings and sculptures were taken from 101 public collections, with far more taken from private collections, to raise funds for the upcoming war effort (Charney 82). Any works not sold by March 20, 1939, were burned in an enormous pyre in Berlin: 1,004 oil paintings and sculpture along with 3,825 works on paper (Charney 83). Once public collections had been purged, the direction of the Nazi confiscatory efforts shifted to acquiring artistic treasures for the public and themselves (Sheehan xxi). Jewish collectors were pressured to sell their possessions at bargain prices and the majority of the art collected was relocated to Hitler’s private museum in Linz (Nicholas 12). The process of “purifying” the German art world is the precursor to the kunstraub movement that would reshape cultural and artistic heritage throughout Europe, eerily foreshadowing the terrible events to come.

The Legacy of World War II

German art experts and dealers followed the expanding German borders in search of paintings, sculptures, and other precious objects that could be shipped back to the Reich (Sheehan xxi). The magnitude of the Nazis’ confiscations is unfathomable. Between 1939 and 1945, Hitler’s chief advisers in implementing art theft policy, Hans Posse and Hermann Voss, acquired some 8,000 paintings for Hitler’s museum project; according to another estimate, the Germans procured as many as three million items from throughout Europe (Sheehan xxii). By comparison, it took Washington D.C.’s National Gallery half a century to assemble 3,000 works of art that were taken during this time (Sheehan xxii).

By the conclusion of the war, a substantial number of the world’s significant artistic treasures became vulnerable to intensive assaults as the Allied Powers pushed back German borders. This resulted in a massive relocation project in which millions of objects were moved to some 1,400 depots, trains, and boats headed for the west (Nicholas 157). Art pieces that could not be shipped or sold were slotted for destruction along with other incriminating evidence the Reich administration did not want to be found. Tentative efforts were made to find and protect art objects throughout Europe, but a combination of higher priorities and lack of significant resources prevented Allied Powers from launching an effective campaign to reclaim this stolen art (Sheehan xxiii).

With the Reich’s surrender in 1945, German sovereignty was thrown into a state of suspension; there was no state that could claim ownership of the stolen artistic treasures and most museums were in no condition to receive their former possessions even if the Allies had been willing to return them (Sheehan xxiv). As Europe and the Pacific focused on rebuilding, American museums and private collectors concentrated their efforts on recovering displaced art pieces that were flowing into the United States. While most of Germany’s art ended up in the American occupation zone or in the United States, a good deal of the plundered art originally came from locations under Soviet control (Sheehan xxiv). As tensions between the United States and the Soviet Union increased in the following decades, the notion of handing over artistic treasures to the Russians became increasingly unattractive (Sheehan xxiv). Thus, initial negotiations over the ownership and extradition of Nazi-plundered art immediately hit political barriers, the legal status of these art pieces easily contested and disputed between the rising world superpowers.

The Shortcomings of Previous Policy Proposals

The consequences of the Nazi kunstraub are full of overlapping policy proposals that continue to discussed and challenged in modern times. In an early attempt to undo the wrongful displacement of Europe’s artistic treasures, the 1943 Declaration of London was drafted and implemented in several countries declaring transfers of their displaced art (Prott 4). When the zone of occupation ended in 1954, the German government agreed to adopt the same provisions listed in the Declaration, but restitution did not occur in all cases covered by these rules (Prott 5). This was followed by the proposal to immediately return of a number of universally recognized works. However, retrieving all collections displaced by the Nazi’s was difficult; the job of deciding whether the art pieces the Nazi’s paid for should not be returned to their original owners fell to the National Commissions of Recuperation, who had to determine if a sale had been “forced” or if collaboration was involved (Nicholas 421). This question largely went unsolved and argued on a case-by-case basis with thousands of pieces slipping through the policy's cracks (Nicolas 423).

The International Conference of 1998, was the last international meeting of consequence held to attempt to define a set of principles governing the disposition of confiscated art. The Commission for Looted Art in Europe was created to investigate ownership claims and facilitate settlements (Sheehan xxvi). While mildly successful, legal proceedings involving plaintiffs two or three generations removed from the original owners could drag on for decades: it took twenty-six years for the grandchildren and great-grandchildren of Sophie Lissitzky-Küppers, a German- Jewish art historian, to establish their claim to Swamp Legend, a painting that passed through a number of hands before being bought by the city of Munich in 1982 (Sheehan, xxvi). It wasn’t until 2012 that Lionel Salem, the grandchild to Italian Jewish art collector Federico Gentili di Giuseppe, was granted the rights to the painting Christ Carrying the Cross Dragged By A Rascal that was stolen from his grandfather during the Nazi occupation of Paris and later loaned to the Mary Brogan Museum of Art and Science in Tallahassee, Florida. (Johnston). The Commission for Looted Art in Europe continues to investigate thousands of claims each year understaffed and underpaid.

The Rise of the “Laches Defense”

Recently in retaliation to the rise of ownership suits, the “laches defense” has been utilized by museums and private art collectors unwilling to part with Nazi-looted art in their current possession. The “laches defense” is composed of two elements: (1) The plaintiff has unreasonably delayed filing their suit for whatever means and, (2) the defendant has suffered harm as a result of the delay (Spencer and Wallace). Depending on individual state statute of limitations laws, which sets a deadline after which lawsuits are prohibited, the “laches defense” is used to make ownership claims on Nazi-looted art pieces invalid due to the extended period of time between when the piece was stolen and when a lawsuit was filed.

The application of the “laches defense” to the art market, and by extension, Nazi-looted art is fairly recent. In an analysis conducted by New York lawyer Jeremy G. Epstein, the case of DeWeerth v. Baldinger stands out as a primary precedent for contemporary “laches defenses.” In 1987, Gerda DeWeerth was denied her claim of possession of a Monet painting that was allegedly taken from her by American soldiers at the of World War II; following the end of the war, DeWeerth was found to have taken multiple forms of legal action between 1945 and 1957 in order to reclaim her stolen artwork (Epstein 44). DeWeerth was granted possession of her art piece only to have the original decision be overruled in a case of appeal, which cited that the original claim was barred by the applicable New York statute of limitations, which required that an action for the return of stolen property be brought to court within three years of the time the action accrued (Epstein 44). It was this overruling that inspired the used of the “laches defense” in a similar cases like, Bakalar v. Vavra, in where Bakalar purchased a drawing that had once been owned by an art collector who died in a concentration camp the Second Circuit Court of Appeals held that Bakalar was prejudiced by the death of the sister-in-law and the time between the theft and the lawsuit, enforcing the plausibility of the “laches defense” against the family who filed for re-possession of the piece (Spender and Wallace).

A Proposed Solution: Grassroots Activism and the Appellate Court System

In an attempt create a faster, fairer legal process for plaintiffs and defendants, it is proposed that ideally and in the long-term, U.S. courts could waive the statute of limitations upon which “laches defense” is functioning. The use of the “laches defense” in court has raised the ethical concern of due diligence and how courts should proceed with ownership claims as the presence of looted antiquities and art pieces in international art markets increases (Hasler and Marinello 317). This arises in the majority of these cases as usually, the claimants took some measures to recover their property in the years following the theft before their efforts diminished from a lack of progress (Epstein 44). However, the application of the “laches defence” to Nazi-looted art should be waived and made invalid in the broader historical context that makes filing a “time-appropriate” suit impossible. As the Nazi Art Theft Movement took place over a wide demographic and was followed by a global displacement of the looted-art, it is improbable and unethical to hold plaintiffs to the high standards of due diligence need to waive the “laches defense” in active court.

I. Feasibility

Voluntarily relinquishing art is difficult for museums, as most directors see protecting collections as a key responsibility (Hickley). In the face of previous legislation that has failed to make a significant impact nationally and internationally, the ideal next step for the United States is to focus on state court systems who maintain and rule in favor of the “laches defense.” Starting smaller with cases provides a more feasible measure for implementation in the face of a state department that refuses to spend public money on a commission to facilitate Nazi-looted art cases (Hickley). Currently, there are over 600,000 Nazi-looted art pieces currently held by governments, museums, and private art collectors around the world, with many holding back progress towards releasing these pieces to their proper owners (Nadeau). However, while recent and previous court rulings on an international scale are bogged down by politics and conflicting interests, starting on a state level within the United States allows for a precedent to be set by the world superpower that could eventually migrate overseas.

II. Implementation

In order to create a precendent on the state level, this proposal cites the use of a two-pronged implementation plan. The first prong features an alliance between those wishing to release Nazi-looted art to their original owners, and those wishing to see traditional and ancestral antiquities returned to the families of North Amerian indigenous tribes. While each movement features different aspects of the artwork stolen, multiple parallels can be drawn between the two: both feature treasure currently displayed in museums, both are advocating for the release and return of these treasures to their original owners, and both can trace a cultural significance back to these pieces. Thus, both movements both can advocate their causes through grassroots activism. Facebook alone, for a fee of $34, Facebook ads and events can reach up to 3,149 people daily (Business Facebook); With a donation between $75-$200, these movements can also invite the inclusion of acknowledgment plaques within museums who feature Nazi-looted art within their galleries (this price includes, exhibition lighting, exhibition area walls, floor, and wall coverings, specialty electrical requirements and exhibit costs) (Walhimer). Through the use of social media (Facebook, Instagram, Snapchat, and online public forums), local petitions, and street protests, both movements can gain support and awareness that are essential towards the implementation of the second prong.

The second prong of implementation focuses on the courts and the broader goal of waiving the ability for defendants to utilize the “laches defense.” Within Epstein’s, Spender’s, and Wallace’s analysis of the “laches defense,” cases like DeWeerth v. Baldinger and Bakalar v. Vavra ruled in favor of the “laches defense” due to a lack or complicated history of due diligence on the part of the plaintiffs. However, with the broader historical context in mind, it can be argued that due to the wide displacement demographic and reconstruction period within Europe after the war, the majority of plaintiffs had no plausible means or knowledge to file a suit. This coincides with previous policy proposals like the Declaration of London, which claimed to implement policies that would see these pieces returned after the war ceased. This proposal simultaneously bolstered by the recent decision made in Vonshaer v. Norton Simon Museum of Art at Pasadena, in where the U.S. Ninth Circuit Court of Appeals reversed the district court's 2012 decision by reinstating the plaintiff Marei von Saher's previously dismissed claims against the defendant Norton Simon Museum to certain Nazi-stolen art (Wolf 525). This arguement, combined with increased grassroot pressure could cause an overturn on previous cases ruling in favor of the “laches defense” with state appellate courts. If enough advocacy momentum is gained, appellate court decisions concerning Nazi-looted art possession could even be brought to the Supreme Court. Thus, through the combined use of immediate grassroots activism and long-term appeals within the state appellate courts, the “laches defense” can be eventually waived, allowing for an applicable opportunity to be set in releasing Nazi-looted art to previous owners.

Conclusion

The Nazi Art Theft Movement was a calculated, premeditative attack on European art that displaced hundreds of thousands of artwork. To this day, the proper ownership of these pieces is contested within courts as a result of previous proposals that failed to properly implement policy on a national and international basis. As a world leader, the United States has been a determining factor on the success of these previous proposals, with many states following its lack of action, causing the legal return and restitution of these pieces to be bogged down by politics and conflicts of interests. In order to set a proper precedent for action, it is proposed that U.S. courts could waive the statute of limitations upon which “laches defense” is functioning, implementing this process through the combined use of grassroots activism and the state appellate court system. Through this, the “laches defense” can be eventually waived as a valid defense, allowing for previous owners of Nazi-looted art to be given a fair opportunity to regain their stolen possessions.

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