From the Adirondacks to the Lower East Side, New York museums face a new legal requirement for their collections – a measure of candor about objects traded during Hitler’s terror reign. On 10 August 2022, New York Governor Kathy Hochul signed a multi-faceted package of legislation “aimed at honoring and supporting Holocaust survivors”. Effective immediately, the package allows for a survey of Holocaust education, a listing of financial institutions that forego Holocaust reparation payment fees, and requires New York museums to prominently identify (with some caveats) art with a Nazi-tainted past.

The scope of New York’s museum signage mandate

New York’s recent mandate to museums was passed as an educational law amendment that requires “identifiable works of art that were stolen during Nazi era Europe” to be paired with signage that tells that truth:

Every museum which has on display any identifiable works of art known to have been created before nineteen hundred forty-five and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty three–nineteen hundred forty-five) shall, to the extent practicable, prominently place a placard or other signage acknowledging such information along with such display.

Several of these terms raise concern over whether this legislation has teeth. Firstly, the law only applies to works “on display.” The vast majority of museum holdings are often not on display. Would this law prompt New York museum officials to avoid displaying stored works and/or transfer works on display into storage to avoid a glaring Nazi-era gap in provenance?

The second concern builds on the first. This law is limited to “identifiable works of art”. This raises the query: could a museum stand blameless under this law for closing its proverbial eyes and bringing provenance research to a standstill for an object suspected to be Nazi-era loot? Possibly. As suggested by art law attorney Nicholas O’Donnell, this law may act as a “disincentive” to the much-needed work of provenance researchers:

“The law could even act as a disincentive to further inquiry. After all, the law does not compel investigation nor does it condemn a lack of knowledge. Arguably a museum would be safer to cease further research lest that research uncover information that would then have to be disclosed.”

The desire to avoid advertising a work’s Nazi-era history and thus increase the potential for a future restitution claim might make this approach appealing. The law does state that identification shall occur only “to the extent practicable”.

Next come questions of who decides whether a work has been thieved, seized, confiscated, forcibly sold or involuntarily taken? And how? What’s more, if signage is deemed to be warranted, what does “acknowledging such information” mean? And who decides what information is shared? As has been seen with contested heritage objects such as Confederate monuments that stain America’s landscape, questions abound over what narrative should be attached to objects. Whose perspective about an object’s history should be given voice?

All that said, there are virtues to this law that should be applauded. The drafters rightly cast the net of this law to include transactions from 1933 (when the Third Reich guilefully promised its way to power and immediately began to terrorize those it despised) to 1945 (when the Third Reich was dismantled).

Additionally, the law is broad in its definition of what art is included. For years, a contentious debate has ensued about whether forced sales of art that took place within the Third Reich’s jurisdiction should be considered stolen. This law appears to make clear that its drafters equate forced sales and the like to theft. It further includes transactions of “other involuntary means”, which Mr. O’Donnell has opined would include “a number of scenarios like so-called ‘flight goods’ where the owner simply had to choose between leaving alive and keeping their art.” Just such a scenario was at play in the infamous Zuckerman case (discussed in a prior blog post and case note in Art Antiquity and Law).

Zuckerman v. Metropolitan Museum of Art

Pablo Picasso, The Actor

Because the work at the heart of Zuckerman (Picasso’s The Actor) currently sits in a New York museum (the Met), it serves as an interesting exemplar for discussion about this new legislation.

In the early 1900s, German Jews Paul and Alice Leffmann acquired The Actor. By 1938, the previously wealthy Leffmanns had been forced into many unfair transactions and made to pay exorbitant flight taxes to escape Germany. After finding themselves in Fascist Italy, they resorted to selling The Actor to dealer Paul Rosenberg and collectors Käte and Hugo Perls. The Leffmanns used the monies received on sale of The Actor to pay for passage out of Fascist-dominated Europe.

The Leffmanns’ great-grandniece, Laurel Zuckerman, pushed through years of U.S. litigation to reclaim the Picasso only to have a New York District Court determine that she had failed to prove duress in the 1938 sale under New York law. On appeal, the Second Circuit declined to decide whether Zuckerman’s claims for recovery of art sold under duress to non-Nazis fell within the Holocaust Expropriated Art Recovery (HEAR) Act and barred her claims on other grounds (laches). According to the terms of this newly introduced law, would the Leffmanns’ sale warrant signage even though a court found no duress in that sale?

Assuming signage was deemed appropriate and understanding that the new law does not speak to online statements, the Met website’s verbiage for The Actor (posted in this form just over a week after New York’s new law went into effect) is insightful:

“In 1938, [Paul] Leffmann sold [The Actor] to Picasso’s dealer Paul Rosenberg and long-time Picasso collector Hugo Perls. The automobile heiress Thelma Chrysler Foy gifted it to the Museum in 1952.”

While referencing Paul Leffmann’s 1938 sale, this description seemingly omits language that would “acknowledge” the Nazi-influenced facts at play that triggered that sale.

How will newly minted placards next to The Actor and/or works like it serve to educate visitors and acknowledge the heinous forces at play that compelled individuals to part with their treasured art?

Potential for New York as a model of transparency

The ‘Excelsior’ State has enacted this educational legislation to reach a higher standard within its museums. This standard calls for teaching the public about the historical truths surrounding works like The Actor. It also offers hope for a fraction of historical justice to those like the Leffmanns who were subjected to Nazi persecution nearly a generation ago. The world community watches to see how New York museums will embrace the opportunity of this commission.

Image of Picasso’s The Actor, 1904, ©Coldcreation via Wikimedia Commons