A Problem with a Picasso: Common Issues Involved in Nazi-Era Art Claims

Victoria K. Boland, KLJ Staff Editor^[1]

In September, the Metropolitan Museum of Art (Met) was sued by the estate of a German Jewish businessman.^[2] The estate of Mr. Paul Leffman claims that one of the Picasso paintings currently in the Met’s possession—The Actor—originally belonged to Mr. Leffmann; he was forced to sell it under duress in 1938 while attempting to flee Nazi persecution.^[3]  It was donated to the Met in 1952.^[4] The Met, however, claims that the painting was sold at fair market value, not under duress, and that there are no grounds for Leffmann’s claim.^[5]

Nazi-era claims like this are hardly uncommon.^[6] It is not unusual for heirs with similar stories to go through extensive litigation and negotiation in an attempt to seek a kind of closure, justice, or connection with their ancestors.^[7] Recognizing this as a valid interest, there have been several international attempts throughout the years to seek just answers for those affected by Nazi spoliation.^[8] However, none of these agreements were meant to be binding on the participants and thus have had little to no legal effect.^[9] Domestically, there have also been attempts to right Holocaust-related wrongs with the Holocaust Victims Redress Act being a prime example.^[10] One of its purported aims was to help owners reclaim property that was lost during the Nazi era.^[11]Courts, however, have regularly denied that the Act created a private cause of action and have rejected property claims that were based on the Act.^[12] Therefore, the Act that was supposed to help victims reclaim lost property has been of little actual aid in the court system.

When descendants do attempt to use the court system to recover property, two common claims are replevin, which seeks to reclaim the actual property itself, and conversion, which grants the claimant damages.^[13] While both are strong potential forms of relief, neither is easily accomplished: many claims are determined not on the merits, but are found to be time-barred due to an expiration of the statute of limitations.^[14] For the statute of limitations, several states start the clock when the true owner knows or should know who is in current possession of the piece—this is known as the discovery rule.^[15] New York has a slightly modified rule: for those claimants, the clock begins after the alleged owner demands the property and the current owner refuses to return it.^[16] In theory, this rule has been described as being potentially more favorable to claimants;^[17] in practice, though, this rule can still leave insurmountable obstacles for claimants.^[18]An issue for claimants under this rule is that the refusal by the current possessor has been interpreted broadly: they can express refusal through their actions rather than words.^[19] That can create conflicting beliefs between the alleged owner and the current owner as to when the actual refusal happened, and thus when the statute of limitations began.^[20] This has lead to alleged owners having their claim stop before it starts due to interpreting the wrong thing—be it words or actions—as a refusal, and then failing to take the appropriate actions before it is too late.^[21]Adding another wrinkle to this issue is the fact that there are other valid interests at stake—those belonging to museums. Museums often serve as trusts or non-profit corporations that have fiduciary obligations, normally owed to the public.^[22] As part of that obligation, museums take on a duty of loyalty to the beneficiary and a duty of care.^[23] The duty of loyalty asks museums to be aware of the potential impact that removing a piece from their collection could have on their beneficiaries—the public.^[24] The benefit that comes from displaying art is more widespread when it remains visible to the public, which means that removal could result in a form of harm the museum is supposed to avoid.^[25] The duty of care asks that museums perform a thorough investigation in the acquisition process that should help them better understand the true provenance of the piece and then hopefully avoid claims like the one the Met is now facing.^[26] Museum associations have also created instructions, such as the Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi era, which encourage museums to be responsible caretakers of these pieces and honest with the public about their origins.^[27] However, these Guidelines have provided little aid to claimants who went against museums that did not adhere to them: they are not legally binding on museums and courts may admonish museums for not following them, but it seems unlikely that museums will be punished for a lack of compliance.^[28]With all of these issues in mind, it is hard to predict the outcome of the estate’s claims in this current case. While it seems unlikely that there will ever be a perfect solution for this kind of problem, it does appear that there could be a better system that allows more claims to have their day in court. This is because at the end of the day, one party—be it the Met or Mr. Leffmann’s heirs—will lose a claim over a piece of art, the value of which cannot be reduced solely to money. That kind of loss is one that should more regularly receive the full attention and consideration it deserves.^[1] J.D. expected May 2018.^[2] Graham Bowley, Met Picasso Belonged to Family that Fled Nazis, Suit Says, N.Y. Times (Sept. 30, 2016), http://www.nytimes.com/2016/10/01/arts/design/metropolitan-museum-of-art-picasso-the-actor-lawsuit.html?_r=0.^[3] Id.^[4] Id.^[5] Id.^[6] Bert Demarsin, Let’s Not Talk About Tezerín: Restitution of Nazi Era Looted Art and the Tenuousness of Public International Law, 37 Brook. J. of Int’l L. 117, 121 (2011).^[7] See Katharine N. Skinner, Note, Restituting Nazi-Looted Art: Domestic, Legislative, and Binding Intervention to Balance the Interests of Victims and Museums, 15 Vand. J. Ent. & Tech. L. 673, 700 (2013).^[8] See Demarsin, supra note 6, at 135-45 (describing several international agreements that aimed to aid Holocaust-related grievances).^[9] Id. at 145-46.^[10] Id. at 146-47.^[11] Id. at 147.^[12] Id. at 154-57.^[13] See Skinner, supra note 7, at 682-83.^[14] See id. at 683; see also Museum of Fine Arts v. Seger-Thomschitz, 623 F.3d 1, 9 (1st Cir. 2010) (upholding the lower court’s issuance of summary judgment due to the expiration of the statute of limitations); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802, 808 (N.D. Ohio 2006) (holding that defendants’ claims were time-barred).^[15] Emily A. Graefe, Note, The Conflicting Obligations of Museums Possessing Nazi-Looted Art, 51 B.C. L. Rev. 473, 482 (2010).^[16] Skinner, supra note 7, at 695.^[17] Id.^[18] See Grosz v. Museum of Modern Art, 772 F. Supp. 2d 473, 488 (S.D.N.Y. 2010) (holding that the Plaintiffs’ claims to various art pieces was time-barred under the demand and refusal rule).^[19] See id. at 484.^[20] Id. at 485 (describing each side’s differing stance as to when MoMA actually refused to return the paintings in dispute).^[21] See id. at 485, 487 (rejecting the Plaintiffs’ date of refusal and concluding that the limitation period began running after certain actions by MoMA).^[22] Graefe, supra note 15, at 493.^[23] Id. at 493-94.^[24] Id. at 497.^[25] See id. ^[26] See id. at 495-96.^[27] See id. at 505.^[28] See Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802, 809 (N.D. Ohio 2006) (“The Guidelines were not intended to create legal obligations or mandatory rules . . . .”); see also Museum of Fine Arts v. Seger-Thomschitz, 623 F.3d 1, 14 (1st Cir. 2010) (advising the museum to follow these Guidelines and initiate investigations at the acquisition stage).