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ESSAYS

John Kane

RECENT ACQUISITIONS

(And Some Thoughts About Looted Art)

It has become customary for us, in mounting our annual Recent Acquisitions survey, to offer a review of the past season's exhibitions and a discussion of recent art-world trends. In 1997-98, the Galerie St. Etienne continued to explore and expand upon areas related to our core interests, Expressionism and self-taught art. The season began with a presentation of Neue Sachlichkeit (German realist art of the 1920s), a field which is still far too little known in the United States. Next came an Egon Schiele exhibition: a major loan effort timed to coincide with the showing of Rudolf Leopold's collection at the Museum of Modern Art. For the annual "Outsider Art Fair" in January, we featured the work of Michel Nedjar (a French avatar of Art Brut originally championed by Jean Dubuffet), in tandem with similarly primitivist works by German and Austrian Expressionists. Finally, we concluded the season with the exhibition Taboo, tracing artists' use of "shocking" subject matter from the turn of the century to the present. Behind-the-scenes activities also kept us busy, most notably the preparation of a new edition of our catalogue raisonné, Egon Schiele: The Complete Works. Containing a supplement with 205 additional entries, this book will be published by Harry N. Abrams toward the end of 1998.

 

Yet for us, as for many in the art world, the most galvanizing event of the season was undoubtedly the subpoena by the Manhattan District Attorney of two Schiele paintings, Portrait of Wally and Dead City III, at the conclusion of the MoMA exhibition in January. Looted art has recently become a hot topic, the subject by now of countless books, articles, television shows and symposia. However, the Galerie St. Etienne has been involved with the subject since the early years following World War II, when a number of Austrian refugees turned to the gallery's founder, Otto Kallir, for assistance in seeking restitution of artworks stolen or lost during the Nazi era. Kallir, himself a refugee from Hitler's Austria, offered his help out of a personal sense of moral imperative, and because his Viennese connections made it possible for him to do so. Both Kallir's Schiele catalogue raisonné and the expanded update compiled by the gallery's current co-director, Jane Kallir, were written with a special eye to collections that had been illicitly dispersed during the Holocaust. In the 1980s, the Galerie St. Etienne continued to aid individual claimants in pursuing lost art, and also contributed information to Andrew Decker's groundbreaking article, "A Legacy of Shame," which prompted the Austrian government to finally make proper disposition of hundreds of looted objects that had for years been stored in the Mauerbach monastery.

 

The Galerie St. Etienne's track record in recovering stolen art for its rightful owners has overall been mixed. The gallery's files (including an extensive dossier on Portrait of Wally) illustrate in poignant detail the obstacles confronting claimants. Forced to resettle abroad, often with scant financial means, and facing as well the emotional upheavals attendant to the entire experience, these people were frequently ill-equipped to fight for their interests. The Allies had mandated that each European government return plundered property after the War, but the Austrian system operated with a double agenda. Seeking to keep as many cultural treasures as possible on native soil, the Austrians sometimes embroiled claimants in lengthy, complex and costly lawsuits. Establishing ownership conclusively, given the circumstances of immigration, could be difficult, and the Austrians were not inclined to be generous in interpreting the burden of proof. Then, even when ownership was legally acknowledged, claimants might be coerced into ceding a portion of their collections to the State museums to get export permits for the remainder.

 

The current surge in claims for looted art must be seen against this background of prior recalcitrance and obfuscation. Had the system functioned better, more justly, there would quite simply be far less art left to claim. And of course the Austrians are not the only ones to blame. Other European countries, too, hoarded looted art in their museums, making little or no effort to trace its ownership. The art world as a whole tended to look the other way where provenance was concerned. Relatively few dealers, collectors and curators knowingly trafficked in Nazi-tainted art, but as the War faded into the past, many neglected to ask the right questions. It is, however, difficult to reproach specific individuals for what was in truth a failure in consciousness and conscience on the part of the entire art world. Moreover, very often the necessary information--only now emerging as a product of more detailed research and the declassification of wartime documents--was not to hand. As a number of collectors and museum directors have recently discovered, it is perfectly possible to get unwittingly caught up in claims issues.

 

On both sides of these issues, the emotional stakes are enormous: on the one side are the descendants of owners robbed and in some instances murdered by the Nazis, on the other are collectors and institutions that generally acquired the works in question, occasionally at substantial expense, in good faith. As a result, finger-pointing and hysteria abound. Claimants are accused of opportunism and greed--as though it were greedy to demand compensation for what is rightfully yours. And the present holders of looted or allegedly looted art, themselves in a sense also victims of the art world's systemic failure, are confronted with images of burning bodies, as though they were somehow personally complicit in the Holocaust. Where once claims were quietly stonewalled and ignored, now every claim is greeted with aggressive publicity; the current holders of suspect art works are in effect assumed guilty until proven innocent.

 

Ultimately, of course, each case must be examined on its merits, but the policies and legal precedents necessary to adjudicate such matters have yet to be fully established. A recent ruling in the MoMA case upheld the New York State law shielding foreign loans from seizure, but it remains to be seen how this ruling will play out on appeal and whether, finally, charges can be sustained with regard to either of the two Schieles. This case and others that have been brought against American collectors and museums raise a host of complicated legal and ethical questions. Can we really ignore the laws of European countries, which (unlike American laws) generally grant clear title to a good faith purchaser after a period of time, just because the work in question has now ended up in an American collection or happens (as with the Leopold Schieles) to be temporarily in the United States? Is there not a moral difference between American holders of plundered art and those European institutions--be they in Austria, France, Holland or elsewhere--which may on some level be seen as successors in interest to the Nazi regimes that once ruled those countries? To what extent does a claimant have a duty to diligently search for a lost work and give notice to the present holder once that work is located? How in such cases does one deal with the statute of limitations, which is intended to guard against stale claims? Are adversarial legal proceedings really an effective route for claimants, often the children or grandchildren of owners who even decades ago may have been hard-pressed to definitively prove ownership and loss?

 

Certainly the American legal system does provide recourse for claimants, while at the same time offering collectors and institutions protection against specious charges. However, in cases involving plundered art, adversarial legal proceedings are often not in the best interest of either plaintiffs or defendants. A lawyer who specializes in restitution issues recently said that he now advises claimants not to bother bringing action unless the art in question is worth at least $3,000,000. In one well-publicized lawsuit that has not yet gone to trial, the defendant's legal costs are already approaching $1,000,000. Certainly it would be preferable if the parties to such suits could work out an extra-legal settlement, in a spirit of mutual compromise. Better still would be the establishment of an independent fund (using public or private monies or a combination of both) to pay legitimate claimants, so that good-faith purchasers are not unjustly penalized. In this sort of forum, with good will on both sides, claims might be evaluated on their moral merits, employing a standard of proof less onerous than that required in a court of law.

 

Clearly the art world has undergone a sea change, and no one will ever again look at provenance the same way. Dealers, collectors and curators may in the past have been too cavalier about provenance, but no responsible person wants to buy or sell stolen art. Whether one ascribes this to the individual's moral integrity, or to a fear of the financial and legal ramifications of getting caught is of no matter. The important thing is that our consciousness as to what constitutes stolen art has now been raised to incorporate a heightened awareness of plundered material. Whatever was common practice in the past, hereafter this awareness must always be taken into account.

 

At the same time, however, one must be realistic about what is feasible and sensible. Many artworks do not have much traceable provenance and never will. Only pieces whose prewar ownership is established and was demonstrably breached can justifiably be subject to question, and the vast majority of works are unimpeachable. Witch-hunting, even in the name of Holocaust victims, is to be deplored, and is in fact detrimental to legitimate claimants, whose moral impunity is sullied by the admixture of spurious allegations. The Holocaust itself was surely an expression of pure evil, but the present situation is far more nuanced, and extremist, winner-take-all tactics will only result in losers on every front. On the other hand, with reason and compromise all around, perhaps the art world can at last be cleansed of the genuinely questionable items and justice finally served.