“As long as they continue to assert title, we can’t sell the artworks,” said the lawyer for the
Jewish heirs to an Austrian 1920s art collector who had owned the Egon Schiele paintings
before the Nazis imprisoned him.
The heirs are claiming that interest on the artworks they
won possession of continues to grow as the interest amount is disputed and leave for appeal
on the merits is sought.
Here a rough german translationÜbersetzung NYL-Joural
On October 31, the family of Fritz Grunbaum gathered at the Museum of Jewish Heritage – A Living Memorial To The Holocaust to thank former District Attorney Robert Morgenthau for his efforts to recover Egon Schiele’s Dead City III, an artwork he seized on behalf of Grunbaum’s family at the MoMA in 1998.
Mr. Morgenthau, referring to the above drawing, read the following from a concurrence written by Judge Edward Korman when he sat by designation on a case called Bakalar v. Vavra at the Second Circuit Court of Appeals:
Grunbaum was arrested while attempting to flee from the Nazis. After his arrest, he never again had physical possession of any of his artwork, including the Drawing. The power of attorney, which he was forced to execute while in the Dachau concentration camp, divested him of his legal control over the Drawing. Such an involuntary divestiture of possession and legal control rendered any subsequent transfer void.
Bakalar v. Vavra, 619 F.3d 136, 148 (2d. Cir. 2010)(concurrence)
“ . . . I think we should come to terms with history.” And, he adds, “Nowadays, I don’t think a museum can afford not to approach this in a proactive and positive manner. What I think sets me apart from many other people of the same positive approach is that I think the best way to deal with it is to talk and to come to a mutually positive conclusion…”
(Diethard Leopold, Son of Rudolf Leopold)
We are very happy about Diethard Leopolds will to return looted artworks and therefore want to be of help in his efforts.
We kindly remind the Leopold Museum Privatstiftung of the claim for restitution regarding the collection Fritz Grünbaum, unanswered since February 15, 2011:
[scribd id=106133836 key=key-27gtplnzeunjihu3t2ji mode=scroll]
For the 15 Drawings & paintings from the Collection Grünbaum find details here
So, as stated by Diethard Leopold:
“. . . That’s why I say let’s get together and speak, …”
We are waiting for his reply!
Finden Sie die deutsche Übersetzung hier
Austria / Czech Republic / United States
September 07, 2010
The heirs of an art collector who perished in a Nazi concentration camp have been given another chance to establish their claim that a drawing by the Austrian expressionist Egon Schiele was stolen from their family.
The 2nd U.S. Circuit Court of Appeals last week ruled in Bakalar v. Vavra, 08-5119-cv, that Southern District Judge William H. Pauley erred in applying Swiss law as opposed to New York law in determining ownership of the work.
The panel’s ruling vacates Pauley’s finding that David Bakalar, an American art collector, became the rightful owner of “Woman Seated with Bent Left Leg (Torso)” when he bought the drawing from a New York gallery in 1963 for $4,300.
The New York gallery had acquired the black crayon and water-based paint drawing four months earlier from a Swiss gallery. In 2004, Bakalar sold the drawing at an auction conducted by Sotheby’s in London for $675,000.
Sotheby’s put the sale on hold after the heirs to Austrian art collector and cabaret performer Franz Friedrich “Fritz” Grunbaum stepped forward to claim ownership of the piece. Grunbaum was arrested by the Nazis as he fled Vienna in 1938 and died at Dachau in 1941.
The two heirs, Czech citizen Milos Vavra and New York resident Leon Fischer, traded lawsuits with Bakalar in 2005, with both sides seeking to be declared the rightful owner.
In declaring Bakalar to be the owner, Judge Pauley applied Swiss law, under which Bakalar, as a good-faith buyer, would acquire title to the work after five years without a claim being asserted, even if the drawing had been stolen.
New York law on the issue is very different: under no circumstances can a thief pass good title and a person from whom property was stolen has a claim superior to a good faith purchaser.
Writing for the circuit, Judge Edward R. Korman, sitting by designation from the Eastern District of New York, concluded that Pauley had relied on the wrong test in choosing to apply Swiss law. The panel remanded the case to Pauley for further proceedings, and, “if necessary, a new trial.”
Korman also wrote a concurring opinion, questioning Pauley’s finding that the Grunbaum heirs failed to produce “any concrete evidence that the Nazis looted the drawing.”
Korman wrote that his reading of the record suggests to the contrary that Grunbaum was “divested of possession and title [of the drawing] against his will.”
Judges Jose A. Cabranes and Debra Ann Livingston joined in Judge Korman’s main ruling.
Provenance in Dispute
The question of whether the Schiele drawing was stolen by the Nazis is sharply disputed.
Bakalar contends Grunbaum’s sister-in-law sold the drawing along with 45 other Schiele works in 1956 to a Swiss art gallery, Galerie Gutekunst. That claim is backed up by documents in files maintained by the Swiss gallery, which show “beyond rational dispute” that the sister-in-law, Mathilde Lukacs, was the seller, said Bakalar’s lawyer, James A. Janowitz, of Pryor Cashman.
The lawyer for the heirs, Raymond Dowd of Dunnington, Barthlow & Miller, called Bakalar’s claims “a complete fabrication based upon forged documents.”
About four months after the Galerie Gutekunst acquired the drawing, it sold it to the Galerie St. Etienne in New York, which seven years later sold it to Mr. Bakalar.
Korman said Pauley should have considered which jurisdiction had the greatest interest in the case.
New York has a “compelling interest” preserving the integrity of its art market as its state Court of Appeals has stated on several occasions, Korman wrote. For instance, in Guggenheim Foundation v. Lubell, 77 N.Y.2d 311 (1991), former Chief Judge Sol Wachtler wrote for a unanimous Court, “New York enjoys a worldwide reputation as a preeminent cultural center. To place the burden of locating stolen artwork on the true owner…would, we believe, encourage illicit trafficking in stolen art.”
By comparison, Korman described the Swiss interest as being “tenuous.” Application of New York law might cause New Yorkers to take a closer look at the work’s provenance, and that in turn, he reasoned, “might adversely affect the extra-territorial sales of artwork by Swiss galleries.”
For choice of law purposes, that Swiss interest, he concluded, must give way to New York’s “significantly greater interest” in preventing the state “from becoming a marketplace for stolen goods.”
On the question of Bakalar’s ownership, Korman noted that the record indicated that Grunbaum was forced to execute a power of attorney giving his wife control of his artwork four months after he was arrested by the Nazis and imprisoned at Dachau.
Under Uniform Commercial Code §2-403(1), which has been adopted in New York, status as a good faith buyer only attaches if a transfer of property is “voluntary,” he wrote.
In Grunbaum’s case, the circumstances “strongly suggest he executed the power of attorney with a gun to his head,” Korman said. If that was so, he wrote, under New York law “any subsequent transfer was void.”
“[Mr.] Bakalar’s suggestion that the power of attorney constituted a voluntary entrustment to property to [Mr. Grunbaum’s] wife is a proposition that remains for him to prove.”
“Unless he does so,” Korman added, even if Grunbaum’s wife, Elizabeth, transferred ownership to her sister to prevent the work from falling into the hands of the Nazis “she could not convey valid title to the artwork.”
In 1955, Austria signed a treaty with the United States promising to give back all of the property it stole from Jews during the period of Nazi “occupation” of Austria. Ever since, Austria has treated this obligation largely as a joke, thumbing its nose at Jews who attempted to get their property back. Only in the 1990’s through a combination of class action lawsuits and the actions of the Clinton Administration spearheaded by Amb. Stuart Eizenstat, did Austria instead agree to pay pittances to Jewish persecutees in lieu of giving them their property back. The sad tale is well told in Eizenstat’s book Imperfect Justice.
But the class action settlements did not cover stolen artworks in Austria. In 1998, in reaction to D.A. Morgenthau’s seizure of Egon Schiele’s Portrait of Wally and Dead City (Dead City belonged to Fritz Grunbaum), Austria passed an Art Restitution Law that permitted claims to be made against artworks in Austria’s federal museum collections. On April 13, 1999, the heirs of Fritz Grunbaum made claims to the following works by Egon Schiele that were stolen from Grunbaum while he was in the Dachau Concentration Camp:
Egon Schiele, Female Nude Seated on Red Drape, Back View
Sitzender weiblicher Rückenakt mit rotem Rock
Jane Kallir: Egon Schiele, The Complete Works 1998, New York №:1504
Gouache, watercolor, and pencil. Signed and dated, lower right. (48.2 x 31.8 cm).
Gutekunst & Klipstein, Nov. 24, 1955, lot 107 1
Exhibitions: London, 1964, no. 67, ill.; Hamburg, 1981, no. 214, ill.
Inventorylist Albertina: 39.931
Jane Kallier: Egon Schiele, The Complete Works 1998, New York №:1797: Heinrich Rieger; Gutekunst & Klipstein, Bern; Galerie St. Etienne, New York; Rudolf Leopold;
Provenance as per Catalog: “Egon Schiele” Würthle Gallery, Vienna 1925:
“Mutter und Kind”, sign Egon Schiele 1915 Sammlung Fritz Grünbaum
Austria never responded to the claims of Fritz Grunbaum’s heirs. From 2000 through 2009, Austria claimed that it was “investigating” the status of the works. In 2006, Mag. Eva Blimlinger was called in to oversee the investigation together with Mag. Annaliese Schallmeiner.
Blimlinger is a respected Austrian historian and oversaw the Austrian Historian Commission’s report found at http://www.provenienzforschung.gv.at/ The Blimlinger and Schallmeiner Report, which was supposed to have issued in the fall of 2009, never has seen the light of day, apparently the victim of the Austrian Federal Ministry for Education, Arts and Culture. Why was that report killed and what did it say?
In the summer of 2009, at the Prague Conference on Holocaust Era Assets, Minister Claudia Schmid promised Congressman Wexler that she would investigate the status of the Grunbaum works at the Albertina. I spoke to Dr. Christophe Bazil and Dr. Thomas Baier, who reassured me that they would investigate the issue and be in contact. I wrote to them and never got any response.
In February, a client alerted me to a forum to take place in New York on Austrian Restitution. The program is here. I was rather shocked that the very Austrian officials who had promised to look into the Grunbaum affair and who did not have the time to answer my communications were to be speaking in New York City.
By failing to return property belonging to Jews, Austria has breached its obligations under the Austrian State Treaty of 1955. This treaty was a condition of Austria’s existence, like our Constitution. The Allies – Russians, French, British and Americans – pulled out of Austria on the promise that all property would be returned to Jews. Instead, Austrians continue to live in homes stolen from Jews, operate businesses stolen from Jews, and to buy, sell and enjoy art stolen from Jews.
Since the Allies left Austria, Austria has enacted successively a system of inadequate and insulting postwar laws that failed to restore property to Jews. To understand Austria’s obligations clearly (the treaty is written in plain English), we look to the actual writing. Article 26 of the 1955 Austrian State Treaty states as follows:
PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS IN AUSTRIA
1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since 13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.
The full text of the Austria is found here, courtesy Wikipedia. You will see that there are no “if’s” ands or “buts” in the Treaty. Its language is unconditional and does not depend on enabling legislation. Indeed, any enabling legislation that fell short of the absolute terms of the Treaty would be unconstitutional in Austria.
It is to be hoped that the U.S. State Department will assist the heirs of Fritz Grunbaum in obtaining a copy of the Blimlinger/Schallmeiner Report and in facilitating conversations through the U.S. Embassy in Vienna, consistent with the Washington Principles on Holocaust-Era Assets. It is to be hoped that President Obama’s Ambassador to Austria, Amb. William Eacho will take a personal interest in the plight of Jews dispossessed in the Holocaust.
Crossposted, see copyrightlitigation.blogspot.com
The International Institute for Holocaust Research-Yad Vashem
cordially invites you to attend the lecture
Egon Schiele’s Dead City
Current Issues In Nazi Art Looting and Recovery
Raymond Dowd, Esq.
Partner – Dunnington, Bartholow & Miller LLP New York
Wednesday, 24 February 2010
Lecture Hall, Room 223, Administration and Research Building
Yad Vashem, Mount of Remembrance
In 1998, Manhattan District Attorney Robert Morgenthau seized Egon Schiele’s Dead City and Portrait of Wally at New York’s Museum of Modern Art, creating a scandal that changed the legal landscape of Europe and the United States for victims of Nazi persecution and their survivors. Ray Dowd represents the heirs of Fritz Grunbaum, a Jewish cabaret performer murdered in the Dachau Concentration Camp. Fritz’s wife Lily died in the Minsk Death Camp. Grunbaum’s art collection surfaced in Switzerland in 1956 under disputed circumstances, and in the first Holocaust-era art recovery trial in U.S. history, Bakalar v. Vavra, the District Court found that passing the artwork through Switzerland gave it clean title. The case is on appeal. Many of Fritz’s artworks are in the Leopold Museum and the Albertina Museum in Austria. In over ten years, Austria has not even bothered to respond to the heirs’ claim.
You can view the Powerpoint presentation that illustrates the audio here
This article is cross-posted (see Copyright Litigation Blog by Raymond Dowd)
In late June I was invited to speak on a panel of legal experts on artwork looted by the Nazis. My topic was legal obstacles to the recovery of stolen artworks.
The image you see here is of an artwork by the artist Egon Schiele called Girl with Black Hair. Every major Schiele expert in the world – Jane Kallir, Eberhard Kornfeld and Rudolph Leopold – has said that this artwork came from Fritz Grunbaum’s collection. Yet Oberlin College refuses to return it – or even to share their research or conclusions about where they believe it came from. Oberlin’s website shows that the work mysteriously surfaced in Switzerland in 1956 – and stops there.
U.S. museums and liberal arts institutions concealing the origins of their artworks is one of the biggest obstacles to researchers being able to restitute artworks to the Jews and other Nazi persecutees from whom they were stolen. As Holocaust victims and their descendants die, U.S. museums simply wait, knowing that they have stolen artworks in their collections. In his 2006 testimony to Congress, AAMD Director James Cuno estimated the number of potentially Nazi-looted works in U.S. museums at “tens of thousands”.
It is astonishing that U.S. museums can engage in this Holocaust denial and feel no backlash. Shame on Oberlin College. Its Dean should be tossed out on his ear.
Amb. Stuart Eizenstat supports a U.S. Art Restitution Commission. Good for him, and not a moment too soon.
You can find my full speech in Prague at the link below.
Disclosure: I represent the heirs of Fritz Grunbaum, a Jewish cabaret performer who was murdered by the Nazis at Auschwitz.