Has moral activism increased Spanish caution for outward loans?

Posted on: December 10, 2019 by

Hot on the heels of its heavyweight (in every sense) Antony Gormley retrospective, London’s Royal Academy of Arts (RA) opened its second winter blockbuster – Lucian Freud: The Self-portraits – in late October to widespread critical acclaim.  Filling the RA’s smaller Sackler Wing (yes – they have one too), the show unites paintings, prints, drawings and sketchbooks spanning almost 7 decades and charting both the evolving style and unscrupulous gaze of one of Britain’s most revered painters.  The show runs until 26 January 2020 before transferring to Boston’s Museum of Fine Arts.

The Thyssen-Bornemisza Museum (Image: Kyle Magnuson CC BY-SA 2.0 via Wikimedia Commons)

Over two-thirds of the 55 Freud works are credited “Private collection”, with no information regarding the lender; eight are borrowed from UK national collections; and three notable highlights are confirmed to come from overseas: Hotel Bedroom (1954) is from Canada’s Beaverbrook Art Gallery; Madrid’s Museo Nacional Thyssen-Bornemisza (Thyssen) lends Reflection with Two Children (Self-portrait) (1965); and Painter Working, Reflection (1993) comes from the renowned collection of the late S.I. Newhouse Jr. (1927-2017).

A major concern for institutions lending their prized works abroad is to ensure their safe return at the end of the loan period.  Of the three works just mentioned, only the Thyssen piece benefits from the mechanism available in a number of countries affording legal protection in this situation – immunity from seizure (IfS), sometimes called anti-seizure measures.  This month in fact marks the 12th anniversary of the UK’s IfS legislation – found at Part 6 of the Tribunals, Courts and Enforcement Act 2007.

The need for IfS arose, in large part, in response to a wave of Nazi-era claims following the 1998 Washington Conference (where 44 nations came together to agree on a set of principles for dealing with claims for works of art misappropriated during the Holocaust era).  One of the earliest – and most high profile – cases involved the very public battle for Egon Schiele’s Portrait of Wally which was detained in New York in 1998 and held by US authorities until settlement was agreed between claimants and Vienna’s Leopold Museum in 2010.

The UK’s IfS legislation provides a mechanism to shield objects on temporary loan from overseas to approved UK institutions from seizure (e.g. by creditors pursuing debts or claimants contesting ownership).  Since its inception in December 2007, 36 UK institutions including the RA have been “approved”. Immunity is automatic upon publication of certain information about the work, including its ownership history, on the borrowing institution’s website four weeks and one day before the show opens. The information published by the RA regarding the Thyssen work can be seen here, for example.

The Thyssen’s IfS request for Reflection with Two Children (Self-portrait) is noteworthy because it is the only immunised work in the RA show and because there is no obvious legal risk.  Freud produced the work in 1965 (so it is free from Nazi-era concerns) and it was acquired in 1984 from the artist’s then dealer, Anthony d’Offay (suggesting a clean bill of health in terms of title and ownership).  By contrast, the RA’s Klimt/Schiele show this time last year had an elevated risk profile given incomplete 1933-45 provenance for many works alongside active US claims by the Grünbaum heirs. The RA accordingly secured IfS protection for over 100 works in that show.

So why might the Thyssen have requested IfS for its ostensibly low-risk Freud loan?  Absent an underlying claim which has not been made public, it seems the Spanish museum may be following in the footsteps of a number of major US institutions by requiring IfS as a matter of course – regardless of legal risk – when it is available in the borrowing country.

Camille Pissarro, Rue Saint-Honoré, après-midi, effet de pluie (1897) ©Wikimedia Commons

The Thyssen’s bruising 14-year US legal battle with the heirs of Lilly Cassirer over Camille Pissarro’s Rue Sainte-Honoré, après-midi, effet de pluie (1897) may also have increased Spanish caution on outward loans.  As described earlier this year, in April 2019 a Californian judge held the Thyssen to be a “good faith purchaser” under Spanish law despite there being “sufficient suspicious circumstances or ‘red-flags’ which should have prompted the Baron to conduct additional enquiries as to the seller’s title” on his purchase of the work in 1976 and it being “undisputed that the Nazis stole the Painting from Lilly”.  Noting that thieves cannot pass good title to anyone – including a good faith purchaser – under California law and common law, the US court pulled no punches in holding that the Thyssen’s failure to return the Pissarro to the Cassirer heirs was “inconsistent with the Washington Principles” and it expressed its regret that it was unable to force the Kingdom of Spain or [the Thyssen] to comply with its moral commitments”.

The current trend of cultural institutions taking a proactive stance in the face of ‘moral activism’ may have caused the Thyssen to pause for thought. Even though it won the fight to retain the Pissarro by the strict letter of the (Spanish) law, the moral ‘wrist slap’ dealt by the US court may well have made the Thyssen nervous, and therefore insistent on the protections afforded by IfS for its Freud work.