We recently filed a petition to the U.S. Supreme Court on behalf of the heirs of George Grosz in Grosz v. Museum of Modern Art, accessible by the link below. The certiorari petition describes how in federal courts around the country, museums and holders of artworks taken from Nazi persecutees have successfully advanced doctrines of constructive notice that have eviscerated the right under state law to recover stolen property that Congress thought existed when it enacted the Holocaust Victims Redress Act of 1998. As the cert petition shows, museums told Congress that state law remedies were sufficient for victims and their heirs to recover stolen artworks. After 1998, with Congress off their backs, museums then argued to the courts that no remedies were available under state law to those who actually tried to reclaim artworks. Several museums even retaliated against Jewish heirs by suing them. By filing these pre-emptive strikes, museums successfully avoided scrutiny into the question of whether or not the art was stolen. By leaving potentially looted artworks in our museums, such "quiet title" actions have stained our national conscience.
Unfortunately, very few voices have been heard to draw attention to this tremendous crime. Media coverage is anecdotal. Each time stolen artworks are uncovered in museum collections, the museums feign horror and surprise, but the reality is that in the high-tax Cold War years, laundering stolen art was a major function of the U.S. museum community. We are all now paying for those Cold-war "don't look a gift horse in the mouth" policies. A generation of wealthy Americans dodged taxes by flipping stolen property to museums, thus passing the societal cost of their misdeeds onto the backs of U.S. taxpayers.
In turning their backs on restitution of Nazi-looted artworks after 1998, American museums have betrayed our trust and have become international scofflaws. This is a major problem and inconsistent with the traditions of common law under which no one can take good title from a thief. It is also inconsistent with the traditions of equity, which do not unjustly enrich those with superior knowledge, such as the museums, that should have known better than to profit from the world's worst crime. Everyone in the art community, thanks to U.S. government warnings starting in the 1940's, knew that acquiring an artwork of European provenance that entered the country after 1932 but was created before 1946 was a "red flag". Art historians now pretend to have no knowledge of this and instead play a game of blaming the victims and waiting until enough people die or are discouraged so that they can assert the defense of laches. While museums throw up endless new buildings, they claim they can't even afford to figure out what stolen art is in their collections. And by refusing to share documents and publish provenances, they ensure that no one else can figure out the stolen property trail either.
American museums, having unclean hands, should not be heard to invoke equity. American museums, which should be taking the lead in opposing Holocaust profiteering, have instead set up impenetrable legal defenses and hide the truth behind spurious claims of privilege. This is both morally and legally untenable. If U.S. museums don't do the right thing and show world leadership in returning the property of Holocaust victims, no one will.
Grosz v Moma Petition of Certiorari FINAL With Appendix 5.10.11
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Wednesday, June 01, 2011
US Supreme Court Cert Petition: U.S. Museums Betray The Holocaust Victims Redress Act of 1998
Labels: alfred flechtheim, art litigation, george grosz, holocaust victims redress act of 1998, moma, museum of modern art, replevin, stolen art, stolen art in museums
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.