23 May 2018

TD 51072

by Marc Masurovsky

Treasury Directive TD 51072 was passed on June 8, 1944, two days after D-Day, under sections 3(a) and 5(b) of the Trade with the Enemy Act. Its aim was to restrict the importation into the US of any art object with a value exceeding 5000 dollars or is of artistic, historic and scholarly interest irrespective of monetary value.” The method of restriction was sequestration of objects falling under the aegis of the Directive. The Roberts Commission was charged with reviewing the documentation accompanying these sequestered objects and either approving or refusing their release under a license issued by Treasury.

The directive applied to any art object that had changed hands since March 12, 1938, two days after the absorption of Austria into the German Reich, known as the Anschluss. In other words, any art object subjected to “internal plunder” from 1933 to 1938, was exempted de facto from the Directive.

Further exemptions to the TD weakened its impact upon enactment.  For instance, objects imported from the United Kingdom and its dominions were exempted from TD 51072. Also, objects coming in from so-called neutral or non-belligerent countries were exempted from inspection at the US Border. However, importers were still required to file two separate forms, a TFE-1 (license to import) and FFC-168 (questionnaire) [FFC-Foreign Funds Control was the main investigative arm of the Treasury and the predecessor to the Office of Foreign Assets Control at the US Department of Treasury]. These forms were designed to shed light on the origin of the objects and the circumstances of their acquisition prior to their entry into the US.

The loophole created by the “artistic, historic or scholarly” value of the object meant that cultural objects viewed as “ordinary” might be allowed in without further ado. What the US authorities together with the museum professionals of the Roberts Commission did not realize is that the vast majority of art objects looted by the Axis fell under that category of “ordinariness.”

The impact of TD 51072 on cultural imports into the US was limited owing to these many exemptions. Also, the Roberts Commission worked hard to dilute its impact and eventually lobbied the Treasury to have the directive revoked on grounds that there was no evidence of loot entering the US. A note here: the Roberts commission would not have known how to identify a looted cultural or artistic object if if it was staring at them, as there were no exhaustive listings of what had been looted by the Axis at the time the Directive was enacted. The Roberts Commission succeeded in getting the TD 51072 revoked and, feeling that its work was done, voted itself out of existence in July 1946, confident that business as usual should resume post haste.

Why all the fuss about provenance research?

by Marc Masurovsky

Up until the mid-to late 1990s, provenance research remained within the province of trained art historians working in cultural institutions where art objects are cared for and displayed for the benefit of the public. The research aims to enhance the understanding of the object—its author, its physical attributes, the period in which it was produced, the reasons for its existence, and how it evolved over time and space.

This kind of research is an academic/intellectual exercise that helps ascertain the authenticity of an object and its place in the history of art, writ large.

It is not a requirement incumbent upon its practitioner. Provenance research is one of many duties that “come with the job.” If it does not get done, no one gets fired. More often than not, the information that is collected about the object does not enter the “public record” insofar as it is communicated to the general public. If it is communicated, that is left up to the discretion of the institution where the research is conducted.

Then, the 1990s came and went, and, all of a sudden, “provenance research” became something else entirely.

If I had been working in a museum in the wake of the scandal surrounding the misuse of Swiss bank accounts owned by persons of Jewish descent who may or may not have perished during the Holocaust, I would have been rather oblivious to any debate about loot in general. Once the debate about the mishandling of “Jewish bank accounts” (I hate that expression!) transferred into the (mis)handling of art objects nestled in the permanent collections of countless museums both in North America and Europe, provenance research entered the spotlight front and center.

If I had been working in a museum at the time that the “Portrait of Wally” by Egon Schiele had been seized at the Museum of Modern Art of New York in early January 1998, I probably would have wondered: what is that all about? And I would have naturally sided with the then owners of the painting, the Leopold Foundation of Vienna, and the exhibitors, the Museum of Modern Art, wondering what Robert Morgenthau, then district attorney of Manhattan, had had for coffee on the day that he decided to order the New York Police Department to seize the painting.

I would have done so because my training would have precluded me from even wondering if I should even worry about whether or not the institution that I served had actual title to the objects under my care and examination. Why should I have worried about title since I simply assumed that my institution was the rightful owner?

The right thing to do is to acknowledge that the beast that has become “provenance research” has been transformed from an innocuous art-historical practice into a tendentious, litigation-laced, means to an end: does the research into the origins of an object lead to the maintenance of that object in the collection that I help steward or does it lead to the de-accessioning of the object because of some historical wrong that broke the chain of ownership of the object, thus changing its status to “restitutable”?

Since the seizure of “Portrait of Wally” in early January 1998, provenance research lost its innocence. Battle lines have been drawn between defendants upholding their rights to keep art objects under fire for being “looted”, on one side, and plaintiffs demanding the return of those art objects arguing that they were the rightful owners whose families had been despoiled for racial, ethnic, religious and other reasons at some point between 1933 and 1945 during the twelve year reign of the Nazi Party and as a result of the expansionist war decreed by Adolf Hitler and his minions against Europe’s “undesirables”-Jews, Slavs, Jehovah’s Witnesses, homosexuals, emotionally and physically challenged individuals, and anyone else who was caught in the crosshairs of a continental-wide fit of man-made madness, verging on an apocalyptic nightmare worthy of any painting signed by Hieronymous Bosch.

There had been a glimmer of hope at the time of the so-called Washington Conference on Holocaust-Era Assets of November 30-December 3, 1998. Art was not supposed to be on the calendar of the conference. The seizure of the Schiele paintings (actually, two paintings had been seized at MoMA in early January 1998) changed the configuration of the planning for the Washington Conference. American policymakers were not pleased about the seizure because they argued that it had besmirched the bilateral relations of the United States with Austria. In so stating, the US government had sided against the claimants and had upheld Austria’s argument at the time that the entire flap over “Wally” was a private matter to be resolved between the claimants—heirs of Ruth Bondi-Jarai—and the Leopold Foundation, then owner of the seized paintings. Still, and this is for another installment, Morgenthau’s muscled intervention at MoMA triggered an existential debate inside Austrian political and cultural circles which forced Austria to reexamine its entire relationship with its past as it affected the illegal seizures of Jewish cultural property. The end result: the only restitution law in the world which mandates “provenance research” in all Federal public cultural institutions of the Republic of Austria.

Begrudgingly, the US government and its many allies at the planning table for the Washington Conference inserted art as one of the many different types of looted assets whose fate needed to be deliberated on by the attending nations and Non-Governmental Organizations (NGO). The Washington Conference produced the so-called non-binding “Washington Principles”—11 recommendations that have become de facto “policy” for lack of a better word in many nations that want to remove that cultural monkey off their backs.

For some, the Washington Conference was a success. For others, it was a dismal failure. For those who deemed it a success, the Conference provided a unique forum to get a sense of where the world stood as far as justice to Holocaust survivors was concerned. The principles notwithstanding, everyone went home thinking they had done God’s work for three days. Those who saw in the Conference a dismal failure balked at the so-called Principles as yet another diplomatic way out of taking full responsibility for not having done anything concrete to render justice to the victims of plunder while throwing a sop at museums, auction houses, and other privateers of the art market by reassuring them that, although provenance research was highly recommended to fill “unavoidable gaps” in the history of ownership of art objects under their care and stewardship, “fair and just solutions” ought to be sought in order to ensure a measure of justice for all. In the end, for the naysayers, the Washington Conference led to a massive failure of international public policy, thus creating a vacuum of power and decision-making over the fate of countless art objects whose newfound status in legal limbo—plundered or not? Restitutable or not?—had to be resolved not with legislation but through, oftentimes, vicious legal battles pitting museums’ hired guns against plaintiffs’ hired guns.

The search for justice over a massive crime of plunder tied to genocide has turned into an international legal slugfest. Instead of chasing airplane crash victims, it has become more profitable to seek out victims of plunder.

Some frequently asked questions

by Marc Masurovsky

a/ What is the total number of art objects claimed?

One should place the ultimate answer to this question in its proper context. By May 1945, somewhere between 15 and 20 million art objects of all sorts, from masterpieces to portraits of your favorite saints and relatives, had been misplaced due to civil unrest, persecution, war, genocide, and theft.

Of those misplaced cultural objects, a small number fit the moniker of “culturally-significant” or “national treasure” or both, depending on who is defining those two very odd expressions. For the sake of the argument, let’s just say 1 to 5 per cent of the misplaced objects fit those categories, or 100,000 (lowest number) to 1 million (highest number). The rest fell into the general bucket of culturally not so significant or insignificant, again, depending on who is expounding on this odd categorization.

Postwar Allied restitution policy ended up focusing on the 1 to 5 percent of objects lost or missing due to State-sponsored mischief between 1933 and 1945. For the rest, compensation schemes were foisted onto shell-shocked survivors and their kin due to an institutional absence of interest amongst postwar governments to aid those victims in locating and recovering their missing cultural property for reasons mentioned above. Many of the culturally significant objects and those earning the label of “national treasure” came from State collections plundered by the Axis or from private collections owned by rather wealthy individuals with close ties to State museums in countries dominated by the Axis. Those items received favored treatment in the eyes of the Allies and their representatives, referred to as “Monuments Men”.

The Allied powers’ prime directive was the rehabilitation of Europe (read that part of Europe not occupied or influenced by the Soviet Army and its government) especially as the incipient Cold War became a full-fledged game of geopolitical antipathy between former wartime allies.

As a consequence of the aforementioned factors and those tied to the inevitable human condition—people over property—most survivors did not file claims in the immediate postwar period and only did so after deadlines had passed and the only chance of recovering anything was close to 0.

By 1956, the US State Department had estimated that approximately several hundred thousand cultural objects of all kinds and shapes and value were still being claimed through its good offices by individuals from more than 30 nations.

From the mid-1990s to today, since there is no concerted international effort to tally the total number of claimed objects that are registered as such with national governments, we can only guess that, perhaps, the figure is close to or in excess of the number declared by the State Department in 1956, since most of the claims were never satisfied.

Nations that are signatory to international compacts known as the Washington conference of 1998 and the Terezin Declaration of June 2009 should conduct a census of all outstanding cultural claims registered as of now in their care and publish those results for public consumption.

b/ what is the total number of art objects restituted?

Historically, we only have repatriation figures from various postwar governments and official statistics regarding actual physical restitutions up to the early 1950s. Since then, there is very little public information that can be found about how many art objects were returned until the late 1990s.

Those nations that have established restitution committees (the United Kingdom, the Netherlands, France, Germany, and Austria) have compiled figures regarding the number of objects that have been claimed through their auspices. But no statistics are tallied pertaining to the number of objects returned through direct negotiations with museums, auction houses, institutions, corporations, and private individuals.

c/ what is the total value of art objects sold after restitution?

The only indication of value comes from press reports about items being auctioned after restitution. It can safely be assumed that the objects with an Austrian provenance—mostly oil paintings by Gustav Klimt and Egon Schiele—have fetched the highest prices at auction following their restitution, mostly due to the infatuation by the upper tiers of the global art market for such works, regardless of their inherent and implicit esthetic value. Those works alone have fetched in toto more than half a billion dollars. It might be safe to conservatively estimate the total value of restituted objects at slightly more than a billion dollars since the late 1990s. But that figure needs to be carefully verified through an elaborate survey of the field of art restitution.

d/ what is the total value of so-called “art restitution litigation?

This question is unfair and unjust but it does capture the collective imagination that impugns all sorts of evil motives to lawyers who seek opportunities wherever they can. We can only surmise how costly litigation efforts can be once we fuse the fees earned from seeking restitution and preventing restitution. Usually, fairly well-heeled law firms are recruited as outside counsel by museums in order to safeguard the integrity of their collections and rebuff attempts by claimants to assert their claims to title. On the plaintiffs’ side, there is an odd mix of solo practitioners and small and large firms involved in art restitution. All told, there are not more than 100 or so attorneys—yes, you read it!—who work on art restitution cases as an integral part of their legal practice if we combined North America, Europe and Israel. Since most plaintiffs cases are adopted on a contingency fee basis, usually 30 per cent, you should take the estimated value of restituted objects and divide that figure by three in order to get an idea on the estimated value of the litigation for plaintiffs’ lawyers. Likewise, for those lawyers defending their clients against outside claims, the fees can easily rise into the millions of dollars for each claimed object. Most of the claimed objects that are subject to intense years-long litigation hold values in excess of 1 million dollars.

Where does all of this leave the bewildered field of provenance research? You guessed it. The two main incentives underlying provenance research are to 1/ safeguard art objects which are part of a museum’s collection or that of an individual collector or 2/ obtain the restitution of such an art object.

What does this mean in terms of the objective and empirical integrity of the research being conducted on the history of an object? How do these legal undertakings affect the very nature of provenance research as distinct from its initial intent as an art-historical practice?

What is the future of provenance research and can it be salvaged as an objective, scientific field of inquiry?

Contextual analysis

by Marc Masurovsky

When looking at an object which is the subject of a claim, one has to know why it is “claimable.”

In other words, the chain of ownership was allegedly broken at some point in its history and the presumed rightful owner never recovered his/her property.

A provenance might not reflect this particular incident whereby one owner loses control of his/her property/the object/through illicit means.

After all, the history of the Third Reich is not contained in a provenance for an object that circulated during the 1930s in Nazi Germany, but anyone reading the provenance should be keenly aware of the historical events that occurred as backdrop to the change of ownership of an object and ask: did those events exert an influence on how this object changed hands?

That is one aspect of contextual analysis.

In this regard, we mean that an object’s history must be viewed in the larger context of events occurring at the time that it changes hands so that we can determine whether that change of ownership was licit or not.

There are also the familiar patterns of complex relations between the presumed owner and colleagues, friends, and business acquaintances alike, which might have weighed in some manner on the ownership trail of the object. In other words, when looking at an object’s history, one must also look at the environment in which the object “evolves.” That is another aspect of contextual analysis.

When discussing forced sales or duress, whereby an individual has no other choice but to sell his property because of the degree to which this person is being exploited, abused, persecuted by representatives of institutions governed by principles that conflict with the owner’s ethos, identity, function and status in the society where he/she operates. The question here is to determine whether or not a forced sale took place. This is all about context. Here again, one has to understand the historical and societal pressures exerted upon the presumed owner of the object to determine whether he/she was in fact compelled to divest him/herself from property that otherwise would have remained unsold had conditions been different. Context and analysis of that context to flesh out the gaps or the spaces in a provenance between different listings of purported owners.

Back to contextual analysis:

Based on the above, can it ever be objective? After all, your forced sale might be my freedom to sell opportunity regardless of who is in power in Germany. What process would close the gap between those two divergent views? How much research would be needed to make a compelling argument for one or the other, but not both? In the Grosz v. MoMA case, inadequate research led to flawed outcomes. The same might be said for the Martha Nathan case against museums inToledo, Ohio and Detroit, Michigan,  and maybe even for the Claudia Seger case against the Museum of Fine Arts in Boston, Massachusetts, and the New Orleans Museum of Art.

How much contextual analysis is warranted in provenance research? As much as is required to make a reasonable determination of theft or of consent in the way that an object changes hands.