The great-grand niece of a Jewish couple from Cologne, the Leffmanns, has again received an adverse ruling in a New York federal case in which she seeks possession of a painting sold by the Leffmanns after Nazi-rule necessitated their departure from Germany. In its June 26, 2019 decision, the Second Circuit Court of Appeals upheld a lower court decision in favor of the Metropolitan Museum of Art, which received the masterwork at issue, Picasso’s The Actor, as a gift in the 1950s. While the Second Circuit noted the US’s Holocaust Expropriated Art Recovery Act of 2016 (the “HEAR Act”) provides a civil claim for recovery of art lost due to “Nazi persecution” at the time The Actor was sold, it found Ms. Zuckerman’s claims were not covered under HEAR; and, even if they were, they failed under the doctrine of laches.
The History of The Actor and Its Ownership
In early 1904, Pablo Picasso sketched out a male figure, moving his back leg to and fro on the paper, and later on the canvas, as if he were dancing in place. By 1905, The Actor had come to life, dressed in pink leotard and painted over a seascape the Spanish painter relegated to an under-painting. With this piece, Picasso had created his final painting focused on the “wretched”. Yet, this haunting work had just begun its long and cheerless journey through the art world.
In 1912, Paul Friedrich Leffmann, an industrialist from Cologne, Germany, purchased The Actor. Only twenty-four years later, in 1936, Mr. and Mrs. Leffmann were faced with loss of virtually all their assets under Nazi Aryanization. This precipitated their flight to Italy two years later. The record reflects the grim reality of 1938 Fascist Italy as the Leffmanns were followed by a growing Nazi presence under Mussolini. Just before being required to declare all remaining valuable assets, the Leffmanns sold The Actor for $13,200 ($12,000 of which was received by the Leffmanns). SPA at 3-14; Docket 81 at 17.
Approximately eleven years after the war, Mr. Leffmann died in Switzerland, and Mrs. Leffmann died there ten years later. Neither filed a claim for return of The Actor. Meanwhile, The Actor had made its way to the United States shortly after the Leffmanns sold it and was purchased three years later at the increased price of $22,500. In 1952, the Met received The Actor as a gift and published a provenance in 1967 that erroneously listed The Actor as having been owned by Mr. Leffmann in 1912 only, and subsequently owned by “a German private collection (until 1938)”. This provenance remained in error for approximately forty-five years. 2d Cir. at 10-11, SPA at 19-20.
Precedent Set In This Case
The Southern District relied heavily on the pre-HEAR decision in Bakalar v. Vavra, which involved a claim for return of an Egon Schiele painting that belonged to Fritz Grunbaum during the war. While held at a concentration camp, Mr. Grunbaum signed a power of attorney to his wife who later passed her husband’s art collection to her sister. The Bakalar decision held the Schiele painting would not be returned; because the artwork was not confiscated by the Nazis, the Court held there was no duress when Mr. Grunbaum signed the power of attorney. 819 F. Supp. 2d 293 (S.D.N.Y. 2011), aff’d,500 F.App’x 6 (2d Cir. 2012), cert. denied sub nom. Vavra v. Bakalar, 569 U.S. 968 (2013). (SPA at 33). Citing to Bakalar, the district court here similarly held The Actor should not be returned because Mr. Leffmann “exercised his free will” when he “negotiated” the 1938 Sale to non-Nazis, and thus was not under duress when he sold the painting. “ As in Bakalar, ‘there is no … evidence that the Nazis ever possessed the [Painting], and therefore … this Court cannot infer duress based on Nazi seizure.’” SPA at 33-34, citing Bakalar at 300.
On appeal, the Second Circuit did not address whether duress was properly alleged or whether claims for “recovery of art sold under duress to non‐Nazi affiliates” falls under HEAR. 2d Cir. at 2, 21. Assuming arguendo the claims were under HEAR, the Court held that those claims were barred by the equitable doctrine of laches; the Leffmanns were “a financially sophisticated couple” who should have filed a claim for restitution because, according to the Court, The Actor was not “difficult to locate” in New York .2d Cir. at 16, 21. Because no demand was made until 2010, the Leffmanns and their heirs were found to have “inexcusably slept” on their rights, resulting in prejudice to the Met due to loss of evidence and witnesses over the years. 2d Cir. at 5-6, 15-18.
The Pre- and Post-HEAR Precedent of Bakalar and Reif
Plaintiff cites to the post-HEAR decision of Reif v. Nagy, 2018 WL 1638805 (N.Y. Sup. Ct. N.Y. Cty. Apr. 5, 2018). (Docket 51, 105). Reif involves the same plaintiffs who lost in Bakalar. However, as plaintiffs in Reif, they prevailed on similar claims for return of two Schiele gouaches. The state court in Reif placed great weight on applying HEAR, noting that it compels return of Nazi-looted art to heirs as set out in the Washington Principles and the Holocaust Victims Redress Act. Thus, unlike the Bakalar Court that found no duress and barred plaintiffs’ claims under the laches doctrine, the Reif Court held that HEAR defeated a laches defence and upheld plaintiffs’ claims, finding Grunbaum’s power of attorney was given under duress and determining all sales thereafter void. The Reif Court pointedly stated that, since Bakalar was pre-HEAR, its judicial findings were not relevant.
While it is fortunate that The Actor survived the war, unlike other works by Picasso that were deemed “degenerate art” and destroyed, its litigious history does little to inspire hope for the return of other works similarly lost during the Nazi reign.As it stands, the precedent made by Zuckerman leaves future claimants with great uncertainty as to how New York courts will apply the HEAR Act and whether they will facilitate the return of lost art. What is certain as of now is this: unless a successful appeal follows that is more in line with Reif, this decision will stand as an impediment for those seeking recovery of art taken by duress from Jews who, like the Leffmanns, were weak contracting parties during the Holocaust Era.
A detailed case note on this dispute was written by Stephanie Drawdy for the October 2019 issue (Vol. XXIV, Issue 3) of our quarterly academic journal Art, Antiquity & Law. In order to subscribe and access this and many other articles please click here.
Image of Picasso’s The Author, 1904, ©Coldcreation via Wikimedia Commons