Why is Contextual Analysis needed In The Resolution of Cultural Heritage Litigation Cases?

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1 Marc J. Masurovsky CLE Program DUE DILIGENCE IN CULTURAL HERITAGE LITIGATION CASES: IS THERE A MINIMUM LEGAL THRESHOLD? The Center for Jewish History, New York, NY October 11, 2013 Why is Contextual Analysis needed In The Resolution of Cultural Heritage Litigation Cases? INTRODUCTION An important part of due diligence in the context of any transaction involving an artworks is to verify the provenance of an object, in other words, ascertaining the veracity and accuracy of all information supplied to explain the ownership history of the object and uncovering additional data about the history of the object. The goal of performing this due diligence is to fill the gaps remaining in the published provenance and to ascertain whether or not the object s current owner has proper title to it. More often than that, though, the information is sorely lacking and might be reduced to brief and imprecise statements, such as private collection, Zurich. In some cases, the provenance can be well fleshed-out, highlighting the evolution of the object through time and place, as well as changes of ownership from the moment that it left its creator to the present era. Due diligence implies knowing how and when and under what circumstances the object changed hands from one owner to the next, and more importantly, how historical events and societal changes affected the ways in which the object changed hands, licitly or illicitly. In our view, this is a key aspect of contextual analysis as an integral part of due diligence. A basic concept of art history that is at the root core of any curriculum, contextual analysis allows the practitioner to examine an art object in the historical and cultural frame within which

2 it was produced and to examine the relationship between the object, the artist, the artist s patrons, and to elicit meaning about the period in which it was produced, if at all. Our purpose today is to go beyond this traditional notion of contextual analysis in art by adding analytical parameters which together constitute the provenance of an object. In other words, contextual analysis requires that one looks at how an object evolves in historical time and cultural space from the time of its creation to the present era. Oftentimes, the object s history includes moments where its ownership becomes entangled in societal turbulence, family rivalries, professional missteps, corporate disputes, State-sponsored and ordered confiscatory measures, which cause it to change hands licitly or illicitly. In other words, the chain of ownership may become broken. In the course of the global events that rocked the twentieth century, none were as momentous and all-encompassing as the Holocaust and the Second World War, both triggered and fueled by the expansionist and exterminationist policies and ambitions of the Nazi Party and its founder, Adolf Hitler, from January 30, 1933 to May 10, WHAT MAKES A CULTURAL OBJECT CLAIMABLE? A cultural object is claimable or the subject of a restitution claim when there is compelling evidence that the chain of ownership was illicitly broken at some point in its history and the presumed rightful owner never recovered his/her property before it ended up in the current owner s collection or business. However, the provenance might not reflect the incident where one owner loses control of his property/the object/ through illicit means. After all, the history of the Third Reich is usually not included in a provenance for an object that circulated within the Reich during the 1930s, but anyone reading the provenance should be keenly aware of the events that unfolded as a backdrop to the change of ownership of

3 an object and ask: did those events exert an influence on how this object changed hands? Still, dates of acquisition, whether consenting or under duress, are usually absent and the names of galleries and individuals involved in the ownership transfer of the object in question mean nothing to the average person. Such knowledge requires an advanced familiarity with the German art market and its players, which few people in the world can claim to know well. The same can be said for all other countries. Indeed, those most likely to specialize in the mechanics of the art market, more often than not, do not necessarily focus on the nature of a transaction and evaluate whether or not duress was involved or other circumstances whereby the then-owner had to part ways with her object owing to the influence exerted by discriminatory laws on the wellbeing and stability of her community due to her ethnic, religious, or cultural origins. To the law practitioner who must decide whether or not a case can be made that an object subject to a restitution claim can be recovered successfully, the challenge lies in how best to clarify the licit or illicit nature of the claimed object s ownership. This is where due diligence and provenance research meet. In this regard, an object s history must be viewed in the larger context of events occurring at the time that it changes hands so that we can determine whether that change of ownership was licit or not. WHY CONTEXTUAL ANALYSIS? There are also the familiar patterns of complex relations between the presumed owner and colleagues, friends, and business acquaintances alike, which might have weighed in some manner on the ownership trail of the object. In other words, when looking at an object s history, one must also look at the environment in which the object evolves.

4 Forced sale, duress or consent? Did the owner of the claimed object have no other choice but to sell his/her property because of the degree to which he/she had been exploited, abused, persecuted by representatives of institutions governed by principles that conflict with the owner s ethos, identity, function and status in the society where he/she operated? In order to determine whether or not a forced sale took place, one has to understand the historical and societal pressures exerted upon the presumed owner of the object to determine whether he/she was in fact compelled to divest him/herself from property that otherwise would have remained unsold had conditions been different. Can contextual analysis be objective? Your forced sale might be my opportunity to sell regardless of who is in power in Germany. How much research is needed to make a compelling argument for one position or the other, but not for both? In Grosz v. Museum of Modern Art, 772 F. Supp. 2d 473 (S.D.N.Y. 2010); aff d, 403 Fed. Appx. 575 (2d Cir. 2010), limited and flawed research led to a flawed outcome at the expense of the claimant. The same might be said for Toledo Museum of Art v. Ullin, 477 F. Supp.2d (N.D. Ohio 2006) or for Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010). HOW MUCH CONTEXTUAL ANALYSIS IS ENOUGH? How much contextual analysis is warranted in provenance research? In spite of compelling evidence of theft, spoliation, and misappropriation, arguments over intention tend to warp both the analysis and the research: what did the victim intend to do with the object under consideration before its theft or misappropriation? In Goodman v. Searle, No. 96-cv-5310 (S.D.N.Y. 1996), transferring case to Illinois, 96-cv-6459 (N.D. Ill. 1998), a case over a Degas pastel, one important question was: did Mr. Guttman send the work to Paris for

5 safekeeping or to be consigned for sale with Mr. Graupe? In Grosz v. MoMA, were the paintings at stake in the Grosz heirs claim covered by pre-existing commercial arrangements between Mr. Flechtheim and the artist, Georg Grosz? If so, what proof was there if any? Proof of intention places a huge burden on contextual analysis. The evidence garnered must be detailed enough and compelling enough from which the aforementioned ambiguities can be resolved or for which adequate answers supplied that move the discussion over the validity of a claim back to where it belongs: historical contextual analysis. However, despite how exhaustive the quest for documentation is which provides a meaningful context with which to explain how an object changed hands licitly or not, a decisive answer may not be within reach to confirm or deny the fact that an illicit transaction took place which broke the chain of ownership, thus validating the claim for restitution. Gaps can be gaping or narrow in any provenance. The challenge is to fill them as best one can and this is where history plays a critical role. Much like a Holocaust survivor and her persecutors might not leave any written documentation about her ordeal or the nature of her ill treatment at their hands, the environment, the matrix in which she suffered becomes the protagonist of the story. For an object of art with a minimalist ownership history attached to it, History ends up playing an oversized role in the search for an explanation, an interpretation, a justification for the charge that it was misappropriated. That is part of the due diligence process. Understanding and apprehending history as it unfolds and through which the object evolves. Dates become critical since an object s fate changes once a new regime comes into power or confiscatory measures are put into place. Without that knowledge, life is a blur and remains so, for all parties concerned. All we would have left is the existing legal regimen under which the claim is being addressed. Of course,, regardless of how much evidence is

6 garnered to justify the bona fides of a restitution claim, legal strictures can still trump the best laid history. Will we ever know the complete and unexpurgated story of ownership of every object on earth that changed hands between 1933 and 1945? Certainly not, much as we cannot fathom every detail of every person s life today, tomorrow, and yesterday. The standard itself is absurd and should never be invoked, but unfortunately, when doubt lingers over the validity of a claim, questions about how an object changes hands can become so unreasonable as to suggest that at some point reasonable inquiry turns into unreasonable pressure by one party over another to produce evidence or documentation which simply does not or no longer exists, if it did to begin with at the time of the transaction. CONCLUSION Due diligence is not only legally required, it is an ethical and moral duty to perform it to the best of one s ability by looking under every rock, regardless of how patently absurd such a quest might seem. Never cave in to the thought: This is ridiculous. I am never going to find anything here. Years, no decades, of experience in archives have taught us that the answers might lie under the most ordinary looking rock, hiding in plain sight, or buried in a throwaway line on page 23 of a 25-page report entitled: Situation report, Paris.