American prosecutors have been busy of late. Not only has New York Assistant District Attorney Matthew Bogdanos been active over the past 18 months in seeking seizure and forfeiture orders for stolen or looted property, but the US Attorney’s office has been busy as well. Added to this is the favourable stance the US courts are taking to claimants seeking the return of art stolen during the Holocaust. It’s enough to make restitutionists breathe a sigh of relief – and for art dealers to get very nervous.
In the case of the New York District Attorney, we have seen the seizure of an ancient marble bull’s head from the Steinhardt collection at the Metropolitan Museum of Art in July 2017 (image on left, c/o NY Times), an Italian krater also from the Met in the same month and, perhaps most contentiously, a limestone fragment hailing from Persepolis, Iran from a dealer’s booth at TEFAF on Park Avenue in October 2017. This last example was particularly noteworthy because the fragment had once belonged to a museum in Canada, the Montreal Museum of Fine Arts, and had been in that institution’s collection for sixty years from 1951 to 2011. We had reported on this following the seizure, but since then, things have gotten even more interesting. Assistant D.A. Bogdanos filed a Motion for Turnover in May of this year, seeking an order from the New York Supreme Court for the item to be restituted to Iran. The D.A.’s approach, which I will be commenting on in the forthcoming issue of Art Antiquity and Law, was rather aggressive; as a result the dealer reneged and allowed the piece to be handed back. The fragment was given to Iran’s Ambassador to the UN in September and by October had returned to Iran, having been displayed in Tehran during a ceremony (image of the fragment below, c/o Wace Ltd).
Meanwhile, Bogdanos’s counterparts at the federal level, the prosecutors at the US Attorney’s office have been at it as well. In 2017 we reported on the seizure order relating to some 3,500 tablets purchased for the Museum of the Bible but looted from Iraq in the 1990s. The owner of the Museum in that case cooperated and the pieces have been sent back to their country of origin. More recently, the US Attorney has sought a forfeiture order involving a 17th century Dutch oil painting by Salomon Koninck taken by the Nazis from a prominent Jewish family and eventually placed in Hitler’s headquarters in Munich.
And finally, regarding Holocaust-era looted art, the civil courts have been busy too. The 2016 legislation, the Holocaust Expropriated Art Recovery Act, has harmonised limitation periods across the US relating to claims involving art lost or stolen during the Nazi period in Europe (1933-1945). By doing so the Act has generally made it easier for heirs to bring claims to recover art taken from family members during that time. The recent case of Reif v Nagy from April was an interesting example of the Act at work. Not only will limitation defences (and the related “laches” defence) be nullified, but courts will seemingly be lowering evidentiary hurdles for claimants as well, for instance when it comes to proving original title in a work or the looting or forced sale. I commented on this factor in Reif v Nagy in the April issue of Art Antiquity and Law. The case is currently under appeal.
All of this will lead many to conclude that the US (and more specifically, New York) is taking the restitution of looted and misappropriated property very seriously. This is true. Assistant D.A. Bogdanos, who as a colonel in the US Marines had been tasked with recovering the many thousands of artefacts stolen from the Iraqi National Museum in Bagdad in April 2003, has a lot to do with it. He is a staunch believer in restitution (anyone who has heard his spirited public talks would agree). But others are also playing an important role, including the Manhattan US Attorney. The question is whether this is the beginning of a major shift in US and state policy – one that will see a growing number of returns in the years to come – or whether the experience of the last while has been but a blip on the radar. Time alone will tell.
For more on the above cases and controversies, see the following articles in Art Antiquity and Law:
- Alexander Herman, forthcoming article on New York District Attorney’s seizure of a fragment from Persepolis, XXIII Art Antiquity and Law (December 2018)
- Nicholas O’Donnell, ‘The Holocaust Expropriate Art Recovery Act – A Sea Change in US Law of Restitution’ XXII Art Antiquity and Law 273 (October 2017)
- Alexander Herman, ‘New York Court’s Affirmation of HEAR Act Brings Added Challenges to Art Dealers: Reif, Fraenkel and Vavra v. Nagy and Richard Nagy Ltd‘ XXIII Art Antiquity and Law 1 (April 2018)
We will also be covering a number of these examples in our class on restitution for the 2019 Diploma course on Art Profession Law and Ethics, with plenty of tips and pointers for art and museum professionals dealing with restitution claims.