Recently discovered Kandinsky offers a glimpse into the murky legal processes and dizzying competing claims that make up the basis of Nazi-looted art restitution cases.
On February 8th, 2023, the BBC published an article on the recently restituted Murnau mit Kirche II (Murnau with Church II), a painting by Russian artist Wassily Kandinsky, that Sotheby’s will auction for $45 million in London in less than a month. The article focuses not on the sale itself, however, but on Dolly’s story—Dolly was the granddaughter of the painting’s original owners, Johanna Margarete Lippmann and Siegbert Samuel Stern—in Nazi-occupied Amsterdam, one that shares its parallels with Anne Frank’s. The article notes that “Anne [was] hiding in another house less than two miles away at the same time.”
The article a;sp highlights the painting’s exhilarating—but not unusual—journey from its creation in 1910 to its acquisition by the Van Abbemuseum in Eindhoven, Holland in 1951 to the present. In an attempt to “establish the claims of Dolly’s family to an art collection which they lost in the war,” the descendants of the Stern family, and subsequent heirs to the painting, fought in arduous legal battles with the Van Abbemuseum to reclaim the work.
Murnau mit Kirche II (Murnau with Church II) in the Sterns’ dining room
Initially, the Dutch Restitutions Commission had, according to author Chiara Zampetti Egidi, rejected the heirs’ restitution claim in January 2018 on the “grounds that ‘insufficient facts and circumstances have been established on the grounds of which it can be deduced with the required degree of plausibility that the work ceased to be in the possession of Stern-Lippmann during the Nazi regime.’” Only recently were the heirs able to recover the painting: after they appealed the Commission’s January 2018 ruling, the Dutch Restitutions Commission reversed it and finally allowed the painting to return to the Stern-Lippmann family.
Now, the painting will be offered for sale by Sotheby’s with “proceeds from the painting’s sale” to “be split between [the] Stern descendents.” But this painting’s “happy ending” is not the case for other works of art in the same predicament. Even though the Kandinsky was recovered, the Stern-Lippmann’s descendants are not sure what happened to the rest of the art in Siegbert and Johanna Margarete’s collection. As such, the money they receive from the auction “will fund “further research into what happened to the rest of the family’s art collection, which included more than 100 artworks by artists including Pierre-Auguste Renoir and Edvard Munch.” According to Philip Saunders, even though much of Nazi-looted art has been recovered by their rightful owners, “there are at least 100,000 works of art still missing from the Nazi occupation.”
In a small list of stolen WWII art works maintained by Herrick, Feinstein LLP, Erin L. Thompson reports that “of around 170 claims listed (litigations, settlements, and negotiations), only eighteen of the claimed artworks were held by private collectors and only thirteen by art dealers or auction houses. The majority—137 cases—were claims made against public museums, country or city governments, or non-profit foundations.” It is clear, then, that the pathway to restitution most often involves plaintiffs going head to head with these public museums, who not only acquire their works through sly purchases, loans, or bequests, but also have ironclad legal teams and all sorts of legal defenses up their sleeves. As such, they ensure that the restitution of these famous artworks is an arduous, onerous process. With the journeys that many works of art take from their original owners to where they are located today, there is no doubt that museums and cities are possessive over what they believe is legally “theirs”.
In fact, the mere discovery of these works in public and private collections opens the door to vicious legal battles, wherein museums will use all sorts of noxious attacks. In his 2017 book, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art that studies “stolen and appropriated art in World War II Europe” and the US legal system’s role in those restitution claims, Nicholas M. O’Donnell analyzes specific case studies that have “ended in litigation in U.S. courts” (O’Donnell xi). In the case of the Picassos that were once in the possession of Paul von Mendelssohn Bartholdy, a German-Jewish banker, for example, the Museum of Modern Art and the Guggenheim first argued that the plaintiff “lacked the legal right and was not the proper plaintiff to bring the claim” (O’Donnell 206) and then that the plaintiff was “under no duress” (O’Donnell 212) when he sold the painting. In another example, the heirs of Jaques Goudstikker, a Dutch-German art dealer, have been “in litigation with the Norton Simon Museum at Pasadena over” (O’Donnell 212) the return of Lucas Cranach the Elder’s Adam and Eve panels. In this case, the Norton Simon claimed that the plaintiff was “inequitable” and “shouldn’t be entitled to recover…because [the museum] alleged her father was a Nazi.”
Along with these “inexplicable ad [hominem] attack[s],” plaintiffs also have to deal with the fact that it is not as simple to rely on one all-encompassing international statute or statement that governs all litigation on restitution claims in the subject matter. Dutch restitution laws, for example, differ from German ones, which have different clauses than French ones, and are completely at odds with American ones. It is truly a matter of which court has jurisdiction—especially when the painting or the defendant is not in the United States.
This is especially true in the previously-mentioned case of the Lucas Cranach the Elder panels, which were wrapped up in a legal battle that included both American and Dutch Law. Even though California had, in the early 2000s, “abolished the statute of limitations for claims to Nazi-looted art” the Norton Simon was successful in dismissing the case on the grounds that the “California state law was unconstitutional” because it was imposing on the “foreign affair powers” of the US government. When the case made its way back to “district court” about six years later, it was decided that “von Saher [the plaintiff and Goudstikker’s heir] missed her deadline to file a claim under Dutch law in the late 40s.” This means that the courts solely analyzed “Dutch laws and which laws applied to Dutch property and which laws applied to alien property” rather than California laws, meaning that it was up to the heir’s mother to “have done something in the late 40s” all because von Saher, as Goudstikker’s heir, was bound by Dutch law. As of 2019, the Ninth District Court ruled for the museum in Saher v. Norton Simon Museum and the panels remain in Pasadena to this day.
In terms of the jurisdiction questions that arise from these international restitution claims (as it is often the case that an American plaintiff is suing a German museum or vice versa), O’Donnell, whose practice focuses on civil litigation with “particular experience in the German-speaking world,” characterizes these as “thornier by far” (O’Donnell xi). In an interview with the Art Law Podcast, he explains that if one was currently in the United States and filing a restitution claim with, say, the MFA “it’s not hard to sue the Museum of Fine Arts in Boston in terms of the jurisdiction, the museum is physically present in Massachusetts. But if you have a collection that’s in Berlin or a collection that’s in Budapest, you have to find a way to acquire jurisdiction over somebody who is not physically in the United States.”
As such, the discovery and rediscovery of famous artworks in public and private collections opens the door to the legal ethics of the restitution claims that concern these Nazi-looted paintings. But how are claimants able to prove that the paintings are a part of their family history and belong to them, when museums are absolutely adamant that the paintings are theirs?
This is where provenance research—research into the work’s ownership history—is vital in settling cases like these. In the case of the sculpture of Saint John the Baptist (which was owned by Jakob and Rosa Oppenheimer until it was taken from them in 1933) their descendants “alerted” the Landesmuseum Württemberg “to the illicit provenance of the sculpture, and the museum restituted it to the heirs.” In the case of the Kandinsky painting, it was a postcard dating to 1966 that ultimately convinced the Eindhoven City Council that the work belonged to the Stern-Lippmann family. As Isaac Kaplan writes, “tracing a painting’s provenance through the war years can rarely be done with absolute certainty” and, as such, there are complex questions that still remain unanswered such as, “who should be the one reconstructing the past—institutions or the heirs themselves?”
Currently, many museums have programs that are dedicated to provenance and, as a result, many heirs have stepped forward to claim and were reunited with their families’ works of art. The MFA promotes research into “objects in the collection that were lost or stolen and never returned to their rightful owners.” They have resolved a number of restitution claims spanning from the Adoration of the Magi by Corrado Giaquinto (the result of this claim allowed the MFA to keep the work in their gallery while recognizing the rightful heirs) in 2000 to a Late Imperial marble Portrait of a Man (the MFA returned this marble head to Italy) in 2022.
But this is just the tip of the iceberg. There are so many more works of art spread throughout the world with as complex a history as Murnau mit Kirche II (Murnau with Church II), regardless of whether or not they were paintings created by the Old Masters or porcelain dinnerware sets created for Willem V, Prince of Orange by the United East-Indian Company. While so many other paintings are in museum vaults or hanging on those unmistakable burgundy painted walls, in the private collections of savvy art connoisseurs, or in unknown locations around the globe, one thing is for certain: as more and more of these paintings are brought into the spotlight, there will be an increase in restitution claims and litigation that will either see the return of these paintings to their rightful owners (or their descendants) or commence the vicious legal cycle once again. Nevertheless, these are incredibly personal matters for the families involved and we can only hope that one day, all these paintings are found and returned to their rightful owners. For as the heirs of the Stern-Lippmann family said in their Sotheby’s press release, “though nothing can undo the wrongs of the past…the restitution of this painting…is an acknowledgement and partially closes a wound that has remained open over the generations.”
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