By Anthony F. Anderson
A controversy over the provenance of two paintings by Egon Schiele that were included in a loan exhibition in the fall of 1997 at the Museum of Modern Art in New York has raised troubling questions about the legal pitfalls of lending art.
In an ideal world there would be few title disputes when art was loaned because for every work of art there would be unbroken and visible chain of ownership from the artist through to the current owner. And maybe this may be possible one day and "Object ID," a standard method of identifying works of art being proposed by the Getty Institute. All too often in the real world, of course, the chain of ownership has a break in it - a break that has been so successfully camouflaged at some stage in the past that the current owner may genuinely believe that they have a clear and unbroken title to what is in their possession.
All goes well - for the current owner, that is, until the work of art comes to public notice in the catalogue of an international loan exhibition. At this stage the heirs of the original owner - from whose estate the work of art was perhaps removed many years ago by guile, theft, or violent expropriation - may come on the scene demanding that the work be returned to them forthwith. And who is to blame them? On the other hand, the apparent owners probably purchased, or accepted the work as a gift in good faith. Who is to compensate them for their loss if the painting is returned to the heirs of the original owner? Lending works of art, can therefore quite easily lead into the troublesome waters of international litigation and, in some cases into political storms as well. No much wonder then that the subject of the legal and contractual aspects of art loans is a hot one at the moment and that on February 6, 1998, Committee 20 (Art and Cultural Property Law) of the International Bar Association will be discussing "Museums as International Borrowers and lenders," subtitled "The benefits, risks and rewards of making loans of works of art," as part of a one-day seminar in Paris. No doubt the Schiele case, currently the talk of Manhattan and Vienna, will be the center of discussion in Paris on that occasion.
The Manhattan District Attorney in New York, Robert M. Morgenthau, stopped the return to the disputed paintings after the museum said it had no choice because of contractual obligations but to return them to the current owner, an organization established by the Austrian Government that is planning to build a museum in Vienna to house the Leopold Collection of which they are now a part. The museum argued that not to return the paintings would throw the art world into a turmoil because lenders would hesitate from lending their possessions for exhibitions in fear of not getting them back.
The Schiele affair was first disclosed by reporter Judith H. Dobryznksi in the December 24, 1997 edition of The New York Times, shortly before the Schiele exhibition, drawn entirely from the Leopold Collection, was scheduled to close. Her original story indicated that one family maintained that one of the paintings in the show, "Wally," was acquired by Dr. Rudolf Leopold, a 72-year-old opthalmologist and art collector, under mysterious conditions and rightfully belonged to them. Subsequently, The Times reported January 1, 1998, that title to another major painting, "Dead City," in the exhibition was being claimed by Rita Reif, a former art news reporter for The Times and her family. They charged that the painting had been confiscated by Nazi agents or collaborators in Vienna from Fritz Gruenbaum, carbaret artist and art collector, co-director with Karl Farkas of the Vienna cabaret "Simplizimus", who last performed on stage on March 10, 1938 and was deported shortly afterwards to Dachau concentration camp, where he died January 14, 1941. See also on-line archives in German of Die Presse of Vienna.
The legal situation is complicated because different jurisdictions often have different standards regarding the recovery of art that may have been stolen, or acquired in "good-faith" by buyers unaware of conflicting ownership claims.
The collection is scheduled to be shown next in Barcelona in February, 1998.
Reaction to the announcement that the paintings might not be permitted to be returned was intense in Austria where newspaper articles suggested that the United States was forcing "the art world into a banana republic" and that the action was a "heist." One story said that "if German museums that lost numerous paintings during World War II were to sue the present day owners American and Swiss museums would be forced to close complete departments." On January 13, 1998, Die Presse of Vienna reported that Sabine Fehlemann, director of the Van-der-Heydt Museum in Wuppertal, Germany, recently discovered - as a result of a fax mistakenly sent to her - no less than 1,000 works of art in the Louvre Museum in Paris that had once been owned by Austrian and German museums. These works of art, including paintings by Renoir, Corot, Delacroix, and Ingres, had been removed from Germany to France in 1945 and had never been returned. Paris museums now resude to talk to Fehlemann on the subject, the report maintained.
The legal ramifications of cases such as this can drag on for years. Several decades ago, a Brooklyn lawyer, Edward Elicofon, acquired two portraits by Albrecht Durer only to have to relinquish them after very lengthy court battles to a German city from which they had been taken during World War II. The issue of the repatriation of cultural treasures is a thorny one for the art community and is not likely to be resolved any time soon.
A January 9, 1997 article by Walter V. Robinson in the Boston Globe quoted Klaus A. Schroeder, the director of the Austrian government-controlled Leopold Foundation, which owns the Leopold collection, as saying that the issuance of a subpoena by Morgenthau was "insulting" and "illegal" and accused the the Jewish claimants of having a "warlike mentality" and resorting to "coercive and underhanded methods." The article said that even if the subpoena were "thrown out by a New York state judge, the US Customs Service is prepared to seize the paintings on the strength of strong circumstantial evidence that Nazis took them from two Austrian Jewish families nearly 60 years ago. Robinson quoted Henry S. Bondi, a nephew of one of the Nazi's alleged victims in the case, as asking "Why didn't MOMA check the past ownership of these items before they brought them here? Why didn't the Austrians clear up this matter 30 or 40 years ago, when they rebuffed my aunt on this issue?"
The US Department of State issued a statement that said "The United States strongly supports the idea that we have to continue to address the remaining questions about World War Two era assets, included looted art, that are still unaccounted for, and that looted art works should be returned to their respective owners."
MOMA had not registered the paintings with the US Information Agency for federal protection, but a museum spokesman said that the works were protected by other federal and state statutes. The paintings had been packed for return to Europe, but now remain at the museum.
A Reuters report January 8, 1998, quoted Dr. Leopold as telling the Vienna daily newspaper Kurier that he had "never bought nor exchanged pictures where it could be proved that they were taken by Jewish owners. The Reuters story said that Austrian culture Minister Elisabeth Gehrer told Austrian state radio that "this deals a heavy blow to the international exchange of art...and shakes the foundation of trust that one should also be given back pictures one has lent out."
The Austrian government offered to conduct an investigation into the paintings' provenance upon their return, but that offer was scorned, according to The Times, by the families "who insted that the paintings be left in the United States as insurance that the panel's process would be fair."
The Schiele affair is a classic example of the precariousness of many art loans and the need for the creation of an international register of art works and a clarification of many difficult legal issues relating to the ownership of art and the attributions of art. See The City Review's articles on Chinagate and Art Loans Gone Awry.
A January 15, 1998 article by Judith H. Dobryznksi in The New York Times confirmed reports in the Austrian press that Dr. Rudolf Leopold maintained that 16 other works by Egon Schiele in museums and private collections in the United States had the same provenance as one of two in his collection that have become controversial because of claims that they were plundered by the Nazis.
The 16 paintings in other collections cited by Dr. Leopold were once owned by Fritz Gruenbaum, a Jewish comedian who died at the Dachau concentration camp in 1940 , and were sold in 1956 by the Klipstein & Kornfeld Gallery in Bern.
Dr. Leopold, the article added, said that the Museum of Modern Art and the Santa Barbara Art Museum in California each own one of the works and that the Art Institute of Chicago and the Allen Memorial Art Museum in Ohio have two each.
The Times article quoted Eberhard Kornfeld, the gallery owner, as saying he could not remember all the details and that he had given all the information to the lawyer in Zurich for the Reif family, the heirs of Mr. Gruenbaum. Timothy Reif, a member of the family, however, was quoted in the Times article as saying that Mr. Kornfeld had not "given us anything." (1/15/98)
A January 16, 1998 article in Die Press in Vienna reported that files in the Palace of Justice in Vienna indicated that Mathilde Lukacs, the sister of Fritz Gruenbaum's widow, Elisabeth, born Herzl, filed an application for a death certificate for her sister in 1954, maintaining that she had disappeared without a trace in Minsk in 1942.
It is possible that Mathilde Lukacs, being the nearest relative to Gruenbaum's wife will became the heir to his estate.
According to the Klipstein and Kornfeld Gallery in Berne, it bought "Dead City III," the painting whose provenance is in dispute by the Gruenbaum relatives, from a Jewish woman from Vienna who lived in Brussels in 1956 and the glalery sold the picture to Dr. Leopold. Insiders knew that the woman's name was Lukacs, but not her relationship to Gruenbaum.
It is therefore possible that the disputed Schiele works might not have been plundered by the Nazis as has been suggested.
Why, then, did the gallery not make their information public?
Apparently, the Reifs filed an inheritance claim in 1963 in Charlottenberg rather than in Vienna, perhaps because that was the location of the German Red Cross Missing Persons Bureau.
It is rather amazing that the Leopold Collection was transfered into the public domain without a clear chain of ownership having been established for each picture. It was not as if the name of the seller was unknown to the Swiss art gallery. Although everything could have been checked, it was not and hence some of the current embarrassment. Neither the Austrian Government nor Leopold appear to have done their homework.
Whatever the outcome of the Schiele case, hopefully it will focus sufficient attention for the need for transparency in art loan transactions and on the great advantages of having provenance information readily available worldwide. It shows that secrecy, far from acting as a protection, actually harms the credibility of the art loan system. When an object of art enters the public domain either by loan or donation, all its documentation and proof of ownership should also enter the public domain. Of course, sometimes such information is not always available or easy to come by, but every effort should be made for accuracy and completeness. (1/17/98)
On February 9, 1998, Morgenthau will give his position before Judge Laura E. Drager, to be followed by the position of the Museum of Modern Art February 17 and a verdict by the judge is expected March 5. (1/31/98)