Wednesday, July 20, 2011

Art Law: Boston Museum of Fine Arts: Sues Heirs of Jews To Keep Stolen Property, Hides Evidence

Two Nudes (Lovers)
Kokoschka, Oskar, Austrian, 1886–1980
163.2 x 97.5 cm (64 1/4 x 38 3/8 in.)
Boston Museum of Fine Arts

Apparently there is some confusion about the Boston Museum of Fine Arts Victoria Reed's role in laundering Nazi-looted art by getting a federal court to shield the MFA from discovery into its provenance research. 
Let's make it clear:  just because a federal judge says heirs have no legal rights to obtain the return of property because the claims are time-barred, doesn't mean property wasn't stolen.   To unpack that double-negative, if a judge says heirs can't find out and prove that a painting was stolen because their claims are time-barred, the museum is granted a windfall: a potentially-stolen artwork that no one can reclaim.
By pulling this scam, the MFA violates the Washington Conference Principles on Nazi Confiscated Art
So the MFA bringing a "declaration of title" action is completely stupid, immoral and unethical because it just means that the MFA has potentially stolen art in its collection that heirs cannot retrieve.   Not to mention, an enormous expenditure of resources on legal fees.
The end result is that the children of Boston can gawk at a work stolen from a Jew and never know the truth.  And the MFA wants to keep it that way.  Nice Brahmin values.
From the First Circuit's opinion:
Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.

So the Museum of Fine Arts avoided discovery and inquiry into whether the object was stolen by invoking a statute of limitations defense.   But the statute of limitations merely affects the REMEDY.  It does not give the MFA title, since under the common law, no one can ever take good title from a thief.
So the First Circuit's decision simply means that the MFA can thumb its nose at Holocaust victims and try to rewrite the history of Vienna in February 1939 to pretend that the Kokoschka was not stolen from Reichel.

This is a use of the law in the service of an evil purpose, it is unethical, immoral and it violates the charitable charter of the MFA, an entity that is subsidized by taxpayer largesse.

To clarify: here's an excerpt from the First Circuit opinion, decide for yourself whether the MFA has laundered this piece of stolen art, keeping in mind that Adolph Eichmann had the property of Vienna's Jews in his grasp in February 1939.
Note that the First Circuit, by inserting the entirely irrelevant fact that Otto Kallir, the alleged "purchaser" from Reichel was Jewish, tries to make the transaction innocuous.  However, many historians have documented the fact that the Nazis used a network of Jewish art dealers to launder the proceeds of stolen art:
Egon Schiele:  Portrait of Dr. Oskar Reichel

Conditions for Dr. Reichel and other Austrian Jews rapidly deteriorated following the Anschluss -- the annexation of Austria by the Third Reich in March 1938. Pursuant to Nazi regulations, Dr. Reichel was forced to file a declaration in June 1938 listing all of the valuable property he owned. One expert witness described the declaration as a "prelude to the formal Nazi confiscation and seizure of all Jewish-owned property in Austria and Germany." Proceeds from the sale of declared property had to be deposited into a Nazi-controlled account and could be withdrawn only in limited amounts. In his 1938 property declaration, Dr. Reichel stated that he owned the Painting and four other Kokoschka works. He declared the combined value of the Painting and another work to be 250 Reichsmark.

Egon Schiele- Portrait of Dr. Oskar Reichel - Head

Around the same time, Kallir, who was also Jewish, transferred ownership of his gallery to his non-Jewish secretary and moved to Paris. While Kallir was in Paris, Dr. Reichel agreed to transfer his remaining five Kokoschka works, including the Painting, to Kallir. The details of this transaction are sketchy. It is not clear whether Dr. Reichel received any consideration for the works at the time. Two contemporaneous notes indicate that Kallir agreed to purchase the five paintings for a total of 800 Swiss francs. However, Dr. Reichel's son Raimund later said that his father arranged for Kallir to send the proceeds of the transaction to another son, Hans, who had already immigrated to the United States. According to Raimund, Kallir sent Hans $250 for the five paintings in 1940 or 1941, and Hans forwarded half that sum to Raimund. The five Kokoschkas, including the Painting, were transferred from Dr. Reichel to a shipping company in Vienna, then exported to Paris.
Dr. Reichel and his wife Malvine suffered at the hands of the Nazis. They were forced to close the business Dr. Reichel had founded and to give up their family home and another property. Their eldest son was deported to Lodz, Poland, where he was killed. Malvine was sent to the Theresienstadt concentration camp in 1943, and Dr. Reichel died of natural causes that same year. The two younger sons had emigrated by that time -- Hans to the United States and Raimund to Argentina. Malvine survived the war and eventually joined Hans in the United States.

Meanwhile, Kallir had settled in New York, where he opened the Galerie St. Etienne. He brought the Painting with him and sold it to the Nierendorf Gallery for $1,500 in 1945. The Nierendorf Gallery then sold the Painting to the E.A. Silberman Galleries, which in turn sold the Painting to Sarah Reed Blodgett in 1947 or 1948. Blodgett kept the painting for many years, lending it out for exhibitions from time to time. She eventually bequeathed the Painting to the MFA, which acquired possession in 1973.*fn4 The Painting has been on almost continuous display at the MFA since then, though it has been loaned out many times for exhibitions in the United States and around the world.
Raimund moved back to Vienna in 1982. He executed a will in 1989, in which he designated Seger-Thomschitz as his sole heir. It is not clear how Raimund and Seger-Thomschitz knew each other. She is described in one document as his "select-niece," but they are not blood relatives. When Raimund died in 1997, Seger-Thomschitz became the sole surviving heir of Dr. Reichel.*fn5
Seger-Thomschitz says that she "first learned that the Nazis confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako . . . ." The restitution of the Romako works was pursuant to a municipal resolution that Vienna had passed in 1999, which in turn implemented a 1998 national art restitution law. One municipal document notes that "it seemed quite proper" to return the works to Seger-Thomschitz because Dr. Reichel "had to sell [them] due to his persecution as a Jew." Notably, Dr. Reichel appears to have sold the Romako works around the same time that he sold the Painting, and under similar circumstances. He sold three of the four Romakos to the Neue Gallery in 1939 "for only small equivalent amounts," and he sold the fourth to the Neue Gallery in 1942. The gallery, by then under the direction of Otto Kallir's former secretary, subsequently sold the Romakos to the city.
Following her correspondence with the Museums of Vienna, Seger-Thomschitz retained a Viennese attorney, Erich Unterer -- who had also been Raimund Reichel's attorney -- "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Seger-Thomschitz and Unterer initially thought that all of the artwork Dr. Reichel lost during the Nazi era had been returned. In 2006, however, an American attorney "began a colloquy" with Seger-Thomschitz and alerted her to the possibility that other works formerly owned by Dr. Reichel might be located outside Austria. Seger-Thomschitz retained the attorney, whose firm then sent a letter to the MFA on March 12, 2007, demanding the return of the Painting.

When confronted with Seger-Thomschitz's claim to the Painting, the MFA undertook "an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim . . . appeared valid or not." An MFA curator and an independent provenance researcher spent eighteen months researching the Painting's history, during which time they visited approximately ten museums and governmental archives around the world and corresponded with numerous other museums and archives. Based on that research, the MFA concluded that the original transfer of the Painting from Dr. Reichel to Kallir was valid and that it would retain the Painting in its collection. It commenced an action against Seger-Thomschitz in the United States District Court for the District of Massachusetts on January 22, 2008, seeking a declaratory judgment to "confirm its rightful ownership of the painting." Seger-Thomschitz answered the complaint in May of that same year and asserted counterclaims for conversion, replevin, and other state law causes of action.

As reported by ArtInfo here:

The MFA declined to allow Victoria Reed, the museum's curatorial research fellow for provenance who conducted the nine-month study of the history of the Kokoschka painting, to comment. It also would not release detailed materials from her report, saying, "The results of the museum's research are clearly outlined in its legal filing, which is publicly available and was shared with the Boston Globe."

What museum conducts eighteen months of research into a provenance that allegedly clears its title and then HIDES THE EVIDENCE?  

More on MFA's misdeeds here.
Not content to remain under her rock, Reed seems now to crave media attention for her occult activities.  A creepy puff piece where Reed brags of her furtive investigations and unpublished research here.   The writer refers to the MFA's payment (in lieu of returning the stolen work) as "rare preemptive compensation".

That's double-talk.  When the Austrians did it to Jews post-WWII to keep valuable pieces in Austrian museums, we have rightly deemed it extortion.

When the MFA does it, it is called "rare preemptive compensation".
More on Oskar Reichel here.
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

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