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  • Claire Kalikman

Title: Art Restitution: The Question of Authority over Art

Millions of people fled the suffering of their home countries during World War II and were dispersed all around the world. But art, too, became a victim of warfare as Nazis pillaged Europe, stealing especially from Jewish families. The war scattered many of these pieces across the country. Due to the disarray the war caused, museums across Europe and the United States ended up with works in their collections that were sold under duress, if not stolen by Nazis. Questions about authority have since plagued the world: who are the rightful owners of the once-stolen art? The families from whom the art was taken? Or the museums that paid millions of dollars to acquire it decades later without any knowledge of its bloodstained past?





One of the many paintings that raises such questions is Camille Pissarro’s Rue Saint-Honoré, après-midi, effet de pluie. It once belonged to Lilly Cassirer, since deceased, a German woman who fled Nazi persecution. Her father-in-law directly acquired the painting from the artist's dealer who bequeathed it to Cassirer and her husband when he died. In 1939, at the start of the war, Cassirer traded the piece to a Nazi officer for exit visas and $360. She later said, “I went along with it, although I knew this price didn’t even remotely reflect its true value.” (In 2014, another Pissarro work sold for around $28 million.) Many people at the time lost their art for two reasons:, stolen art, and, selling art in order to flee. Cases of art restitution do not make a distinction between the two; the law sees both as unjust.


After the war, Cassirer did not know where the painting was and made a settlement with the German government for some money with the assurance that she still had rights to the painting someone ever found it.


“Art holds a special status in the eyes of the law,” said Yale Art Law professor James Whitman. Many laws promote the special status of art and cultural property. “In some cases, we even seem to view cultural property as more important than people: perhaps it’s because human life is short but cultural property is forever. Whether or not this view is correct, it is a reality.” Professor Whitman also noted that nationalists believe that cultural property belongs to a certain group and only to that group or country.. On the other hand, internationalists believe cultural property belongs to all humanity regardless of its “original” country. Arts and technology attorney Betsy Golden Kellem commented that, “In World War II cases, things are a little different than in the broader nationalist v. internationalist dialogue, which generally gets more into issues of cultural identity and colonialism, and the philosophy of where an object of art ‘belongs.’” But in World War II cases, the issue is less about cultural identity and more about who the pieces originally belonged to.


Meanwhile, in Spain, the Thyssen-Bornemisza Museum was busy making the Pisarro piece the centerpiece of their collection. They had the painting since 1993, after having bought it from a New York gallery. Around 1999, a friend of the family saw the piece in the collection and contacted the heir, Lilly’s grandson Claude. The family contacted the museum for its return, but the museum rebuffed their request. The museum did not want to give up such an important piece, one they paid for, and on which it built part of its reputation. It’s also possible the museum holds the internationalist view: that the painting has importance for all of humanity, so the museum should be the steward of it, so the art can be open to everyone to see. If the museum holds an internationalist view, then it will steward the work to everyone, regardless of these other considerations.


The museum did not dispute the history of the painting, but in its eyes, the work was not stolen by the Spanish government but rather acquired in good faith, meaning that no theft was suspected. Many criticized the museum for not having undergone a rigorous enough process to divine the provenance of the painting. In art restitution cases, the burden falls on the individual trying to reclaim art to find the owners and return it —not on the museum—another issue in the field.


This case ended up in the Spanish and American courts, because the Cassirer heir lives in California. There is no art-equivalent of the International Criminal Court, and under the Foreign Sovereign Immunities Act, American courts generally cannot exercise jurisdiction over foreign governments. However, there is an exception if a government took property in violation of international law. Spain first claimed immunity as it did not take the painting, Germany did. But the American courts disagreed because of technical matters, and said the museum could be sued in American court. Yet the American court decided to apply Spanish law, an aspect of which was called adverse possession. It essentially stated that, after possessing something for a long period of time, it became yours. The court ruled that the Cassirers should have found the painting long before they did, since it was on public display in Spain.


Then, just last year, an American court granted the Cassirer family an appeal, since the museum had not properly established that it had no knowledge of the Nazi-looted nature of the painting. The museum had no incentive to find the one-time owners and give up the prized Pisarro work. Near Eastern antiquities scholar Benjamin Foster suggested, “All art galleries and museums have acquisitions of very dubious parentage.” Dubious parentage may be an inevitable part of art acquisition, but this does not negate the importance of trying to return works of art to their original owners.


Yet Prof. Whitman pointed out that art restitution from World War II can be “a romanticization.” He argued that while “it may be appropriate that we are uniquely horrified by the seizure of art,” in the vast majority of art restitution cases regarding art taken during World War II, families who have art returned to them immediately turn around and sell it, pocketing the financial profit. He pointed out that “there are a lot of ways to make reparations without giving back art.” One example he suggested for the sake of argument would be to collect the art that was stolen during this period, sell it, and make a general fund for families of victims. Further, Professor Whitman asked whether we should worry that the kinds of families that own Pissarros are wealthy families, so the issue of art restitution may often be one that helps only rich people.


The painting currently remains on view in the collection.


This case is just one of many ongoing art restitution cases stemming from World War II. Importantly, these cases are only possible largely because of the effort undergone during the war to avoid damaging cultural property. The so-called “Monuments Men” took great actions to protect art during the war and recover it in the aftermath. In fact, the history of the Monuments Men is richly intertwined with that of Yale’s visual-arts community, as four directors of the Yale University Art Gallery—Theodore Sizer, John Marshall Phillips, Lamont Moore, and Andrew Carnduff Ritchie—were part of this group.


But this notion of saving priceless works of cultural property does not carry into every war. When the US was at war in Iraq in 2003, “archaeologists supplied the State Department with lists of cultural property that they ought to pay attention to. The Iraq Museum was high on that list,” said Karen Foster, a specialist in the art and archaeology of the ancient Near East and Aegean. But in the aftermath of the American entrance into Baghdad, only one building was properly secured: the oil ministry. The US clearly had other interests in this case, and did not value Iraqi art as much as previous generations had valued European art.


Asked why she works on issues of cultural property, Karen Foster, a specialist in the art and archaeology of the ancient Near East and Aegean, responded that she and her husband have “spent our professional lives trying to further understanding of the past, so we care tremendously about what happens to this material in the present.”


Kellem also commented that, “There is general agreement that World War II art should be restituted, and where it gets sticky there is in doing the provenance work.”There is great difficulty tracing the various sales of an artwork that some parties, over the years, may have undertaken without knowing it was stolen. Even when parties agree that a piece may have been initially sold under forced circumstances, there can be disagreement over whether the following sales were done under good faith. Kellem noted, however, “It seems in the Pissarro case that the 9th Circuit is going along sensibly.”


The question of who art belongs to is never an easy one to answer, on both a theoretical and a practical level. “Objects are concrete while culture is abstract, and it can be really challenging to balance the different considerations of what an object is worth to different interested parties,” said Kellem. Due to the abstract nature of culture, the question of ownership becomes murky. The Cassirer case exemplifies this issue, but it is just one of many. Questions of ownership will continue to plague museums and trouble families for generations to come.

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