Art Restitution Goes on Trial

By Marilyn Henry

Published July 18, 2007, issue of July 20, 2007.
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A lawsuit over ownership of 14 paintings by Russian artist Kazimir Malevich is currently pending in federal court in Washington. The case is complex, but this much seems certain: The court’s ruling will strongly influence whether American courts remain open to claims for Nazi-looted artworks being held by European museums.

A major issue in the Malevich lawsuit is the American government’s grant of immunity from seizure. It is one of two federal measures, one legal and one financial, that promote international cultural exchange.

The government’s goal is certainly commendable, but in the interest of cultural exchange it effectively allows the rights of victims of art theft or expropriation to be overridden. Taken together, the two measures create the bizarre scenario of the American government subsidizing the exhibition of misappropriated or looted art at American museums while barring victims from filing claims in American courts for these artworks.

There is nothing sinister in the measures’ intent, which help museums enormously. The federal legal protection and financial support for international loans enables them to mount shows that are culturally significant and often reap substantial economic benefits for the museum’s home city. The Metropolitan Museum of Art, for instance, said two recent exhibitions — “Cézanne to Picasso: Ambroise Vollard, Patron of the Avant-Garde,” and “Americans in Paris, 1860-1900” — generated $377 million for New York.

Those exhibitions were made possible, in part, by immunity from judicial seizure issued by the State Department, and a federal indemnity that insures artworks and artifacts against loss or damage while in transit and on loan for exhibition in the United States.

The immunity from judicial seizure assures foreign institutions that artworks lent to the United States will be returned. It dates from 1965, when foreign lenders, primarily in the Soviet Union, feared that the objects could be seized as payment for court judgments or held as collateral for commercial debts. That happened in 2005, when officials at the Swiss border briefly impounded masterpieces from the Pushkin Museum as payment against the Russian government’s debt to a Swiss company.

The federal financial support comes from the Arts and Artifacts Indemnity Program, which is administered by the National Endowment for the Arts on behalf of the Federal Council on the Arts and the Humanities. It provides insurance coverage of up to $600 million for a single exhibition.

Since the program was created by Congress in 1975, it has indemnified 800 exhibitions. To date, the government has had to pay only two minor claims. Museums, meanwhile, have saved some $185 million in insurance premiums.

There is no direct link between the indemnity and immunity programs. However, the National Endowment for the Arts encourages applicants for its indemnity program to apply to the State Department for immunity from seizure.

It is the combination of the two measures that creates the paradox: They each protect artworks and artifacts without much attention to ownership.

The application for the indemnity program requires a statement on the significance of the exhibition and the objects, as well as on their educational, cultural, historical and scientific value. It also asks obvious insurance- and risk-related questions, including the value of objects; packing, shipping, climate control and security arrangements for the exhibition; and storage and transit, including the names of couriers, who are required to accompany all shipments.

However, the National Endowment for the Arts application asks only for the lender’s full name and country of residence. It does not ask the lender to certify that it has legal possession, is the legitimate owner or custodian, and faces no claims for the objects.

To obtain immunity from seizure for objects from abroad, borrowers must tell the State Department that they have conducted “independent multi-source” provenance research on the artworks, and must certify that they do not know of potential competing claims. If such claims exist, they are to be noted.

The State Department relies on an honor system, accepting a boilerplate statement that the provenance research has been done. It is not equipped to confirm that borrowers have undertaken research; it does not check for proof of provenance or conduct its own provenance research.

Even when competing claims of ownership are noted, it does not automatically mean that protection will be denied. If the State Department determines the exhibition to be of cultural significance and in the national interest, immunity is granted — regardless of ownership conflicts.

There is no process by which to appeal a decision to grant immunity, nor are there special provisions for artworks whose ownership is disputed, such as the Malevich paintings.

The artist’s heirs first notified the State Department in 2001 of their claim to 14 paintings held by the Stedelijk Museum that were to be loaned to the Guggenheim Museum in New York and to the Menil Collection in Houston. When the case was first brought before an American court in 2004, while the exhibition was still under way, the Stedelijk argued for dismissal on the grounds that it had governmental immunity.

The court rejected the Amsterdam-based institution’s argument. The State Department, however, not only granted the museum immunity from seizure, it assigned a Justice Department prosecutor to the case — to defend the grant of immunity, not to sort out the paintings’ disputed ownership.

If Malevich’s heirs lose their case, Jewish claimants for Holocaust-era looted artworks may find their legal recourses further limited. As it is, European law is not conducive to such claims, especially those against artworks now held by government-supported museums.

To assists claimants in recovering Nazi-era looted artworks — particularly if American courts resists hearing claims — Congress should step into the fray. It can exert leverage by revising the State Department criteria for immunity from seizure, by demanding spot checks on provenance of borrowed objects or by instituting a procedure to review immunity decisions by the Office of the Legal Adviser.

Congress also could amend the Arts and Artifacts Indemnity Act and impose a new condition for insurance: Namely, that museums be required to undertake provenance research and either certify that all the objects are free from taint or identify any credible claims of ownership.

A museum could decline to certify the works, but at a cost — it would have to pay its own insurance premiums.

Marilyn Henry is the author of “Confronting the Perpetrators: A History of the Claims Conference” (Vallentine Mitchell).

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