Israel and Germany agree to cooperate on looted art

This blog has often covered cases and disputes over art stolen from Jews during World War II.

The most recent news on this topic appears to be rather positive. Last week Israel and Germany signed an agreement under which joint-research will be conducted in museums in both countries to determine the provenance of art suspected to be Jewish-owned art looted during World War II.

The AFP reports that under the agreement, which was signed by the countries' respective Culture Ministers, art experts from Israel and Germany will undergo training and coordinate the formation of joint databases.

The agreement apparently formalises the ongoing cooperation between the two countries, which was particularly tested recently with the discovery of the "Gurlitt stash" (reported here, here and here).

German Culture Minister Monika Gruetters released a statement about the agreement, which says that the agreement represents a "huge vote of confidence" as Germany does not work with any other country in this way. The statement also provides further details as to how the agreement and cooperation between the countries is intended to work in practice. [Unfortunately it is in German, and that's about as far as my German goes. Curious German speakers can read the rest here.]

It will be interesting to see if there is any change to looted art cases going forward, in the wake of this agreement.

More artworks discovered in Austria

Back in November 2014, the discovery of a trove of hundreds of art masterpieces in an apartment in Munich made headlines around the world.

As we explained here, the trove was found by German authorities investigating Cornelius Gurlitt, the 81 year old son of Nazi-era art dealer Hildebrand Gurlitt. Upon entering Gurlitt's apartment, the authorities discovered the artworks, including some believed to have been looted by the Nazis.

It is now being reported that yet more pieces were discovered in a second home belonging to Gurlitt.

The Telegraph reports:

Officials investigating the secret Nazi-era art cache hoarded by an elderly German art collector are examining a second stash of paintings found at another of his addresses. 

Cornelius Gurlitt, who kept around 1,400 works at his apartment in Munich, also had around 60 pieces in a flat in the Austrian city of Salzburg, it was disclosed. 

...

The works were secured on Monday and were being examined by experts at Mr Gurlitt’s request to establish whether any of them had been looted by the Nazis, said [Mr Gurlitt’s spokesman, Stephan Holzinger].

“At the request of Cornelius Gurlitt, the works are being examined by experts on whether they include possibly stolen art,” he said. “A preliminary assessment based on an initial screening did not substantiate such a suspicion.”

Source: The Telegraph, 11 February 2014.

Would Germany and France find the red bus photo infringed?

You will be relieved to know that this is my last post, for the time being, on the red bus case...

France and Germany - moving towards both politcal and copyright law unity
[I've run out of red bus photos]

Again the inspiration for this post comes from the 1709 blog organised red bus seminar last week. Brigitte Lindner provided a fascinating comparison of the way the German and French courts would have approached the red bus problem. A very general summary of her talk is below.

Subsistence
France follows a fairly similar approach to the UK. A photograph attracts copyright protection if it is original and carries the “imprint of the personality” of its author. What this means in practice largely accords with the principles applied in Temple Island i.e. the court will look at a combination of the exposure, lighting, composition etc to determine whether a work is original.

By contrast Germany has a two-tier approach to photographic protection. A mere “photograph” i.e. any old photo with no creativity or artistic quality is treated as a “relative right” and protected for 50 years from the date of publication. The title of “photographic work” is awarded to “personal intellectual creations” which are similar to the French original photographs (angle, focus, colour etc are all important in this assessment).

Whilst Brigitte considered that the Claimant’s red bus photo would be protected as a photographic work in both France and Germany, she noted that it would definitely have been protected in Germany as a photograph at the very least. [Or would it, if the heavily manipulated image was arguably a collage?].

Infringement
France has only one very broad test for infringement which includes making adaptations and is general enough to encompass not just unchanged copying but cases where “characteristic and original elements” have been taken.

Germany has two types of infringement (1) reproduction – which covers unchanged copying and (2) adaptation – which covers alterations of an existing work.

A defence of “free use”?
Although Brigitte considered that the defendant’s images would have infringed in both France and Germany, she considered the potential for the Germany “free use” defence to apply.

Not to be confused with “fair use” (US) or “fair dealing” (UK), free use is essentially a freedom of expression defence. In order to qualify for the defence the new work must be so separate from the original that the first work “fades” in comparison. [This surely incorporates a judicial assessment of aesthetic quality]. Birgitte considered that the defendant would have needed to move further away in order to qualify for this sort of protection and could not rely on the defence in Germany.

Does anyone have experience of French or German law and can offer an insight into how this approach to photographic subsistence and infringement applies in practice? I noted a recent case in France (reported by TechDirt and the BJP) where the Le Corbusier Foundation appears to have successfully sued Getty for stocking some photographs of Le Corbusier chairs without its permission. Any information on that case would be of particular interest.

Giacometti art scam verdict

The first verdict in the one of the largest art frauds in Europe was delivered last week. Relating to the case of more than 1,000 fake sculptures by Alberto and Diego Giacometti which were uncovered by police in Germany in 2009, the FT reports:

“The trial of five suspected forgers has been going on for months in Stuttgart, and now a first verdict has been handed down in court. Three of those in the dock – two art dealers from Wiesbaden and the wife of a Mainz art dealer – have pleaded guilty to fraud and forgery and were sentenced to two years’ prison, suspended, plus a fine for two of them. The others, the Mainz art dealer, and a self-proclaimed “count”, Lothar Wilfried Senka, have admitted some of the charges but deny others; this case continues.

...Stuttgart prosecutor Dr Mirja Feldmann says that the “count”, identified in media reports as Senka, claims the sculptures came from Giacometti’s brother Diego. Feldmann also told me that the Mainz art dealer has admitted that he thought that the sculptures were fakes, but says that he owned the plasters and never had any intention of selling them. He also admitted issuing provenance certificates. A verdict is expected this spring.”

Considering that the total value of the pieces would have been hundreds of millions of pounds, if they were genuine, and that a number of dealers and collectors had already acquired large numbers of the sculptures for an estimated total of €9 million, a suspended prison sentence seems like a rather light penalty given the extent of the fraud.

A selection of the sculptures which were seized:

Source: The Financial Times, 25 February 2011

Rubens Causes More Controversy as Artwork Owned by A Victim of the Nazis to Remain in Britain

Following on from my earlier post, it seems that Rubens was causing a stir before Christmas too.

His work entitled The Coronation of the Virgin, an oil sketch measuring 46cm x 61.4cm, was painted in or around 1613. While the painting is one of Rubens's lesser known works, it is considered important as it is part of a group of oil sketches by the German-born artist made in preparation for a series of larger paintings that decorated the ceiling of a Jesuit church in Antwerp destroyed by fire in the 18th century.

15 December 2010, after dispute between the Courtauld Institute and the family of its original owner, Parliament's Spoliation Advisory Panel ruled in favour of Courtauld Institute and as a result the historically important painting of the Virgin Mary stay in Britain. The full report of the Panel can be found here. Last year another painting formerly owned by the Jewish banker, Hans Makart's The Death of Pappenheim, was returned to the same family by a decision of Vienna Municipal Council.

The Spoliation Advisory Panel, chaired by Sir David Hirst, was established in February 2000 by the Department for Culture, Media and Sport as an advisory non-departmental public body (NDPB) to help resolve claims for cultural property looted during the Nazi era. On 12 April 2010 the Panel was dissolved as an advisory NDPB and reconstituted as a group of expert advisers which continues under the name 'Spoliation Advisory Panel'. Sir David Hirst continues to be chairman, the Panel's membership remains as before and the Panel remains the advisory body designated by the Secretary of State under Section 3 of the Holocaust (Return of Cultural Objects) Act 2009.

The Panel resolves claims from people, or their heirs, who lost property during the Nazi era, which is now held in UK national collections. The Panel is appointed by the Secretary of State. It considers both legal and non-legal obligations, such as the moral strength of the claimant’s case, and whether any moral obligation rests on the holding institution.

The painting came to Britain after it was acquired at auction at Sotheby's by a noted collector, Count Antoine Seilern, who bequeathed it to the Courtauld Institute in 1978. The painting’s original owner was Jewish Banker Herbert Gutmann, the Director of the Dresdner bank until 1931 and son its founder. Gutmann himself was a collector of Islamic, European and decorative arts. After his father died he was appointed the director of Dresdner Bank until 1931 when he stepped down in the wake of the German banking crisis. Having sold his art collection in Berlin in April 1934, he fled Nazi Germany for the UK in October 1936. He died here six years later. His brother and his wife, who remained in Germany, were murdered by the Nazis. Gutmann's remaining assets were seized by the Nazis in 1940.

Gutmann, described by a propaganda poster as a "profiteer and a Jewish manipulator" was feared by Hitler as someone, along with his contemporaries, who might support a coup against him. Indeed in 1934, together with other members of centrist and right-wing parties, several of Gutmann's contemporaries were murdered on the orders of Hitler. Gutmann’s descendants maintained that he was forced to sell the painting in haste before the Nazis seized the collection and because he was forced to flee Nazi Germany and as such the Courtauld was obliged to return the work.

Central to the row over ownership was whether Gutmann had been forced to sell the painting because of antisemitism. The panel heard evidence that Dresdner Bank became "Nazified" and was encouraged to persecute Jewish employees. The panel report notes: "While there is no documentary record of Gutmann having owed any money to the Dresdner Bank before 1933, documents start recording money owed by Gutmann from this point onwards, beginning with a debt, reported in July 1933, of 200,000 reichsmarks owed to a Dresdner Bank share syndicate set up in 1927, in which Gutmann was a participant."

The panel also heard Gutmann’s wealth was eroded after unsuccessful investments in Egyptian cotton and that Gutmann sold his art collection as a “cold financial calculation” because of these financial losses, rather than due to anti-Semitism. The panel agreed with his and saw no grounds for criticism of the Courtauld. In their final conclusion considered the moral strength of the Claimants’ case insufficient to warrant a recommendation that The Coronation of the Virgin should be transferred to them or that an ex gratia payment should be made to them.

Original Source: http://www.culture.gov.uk and http://www.guardian.co.uk

No freedom of art for witty German egg cup

Meet the eiPott. A Hamburg Appeal Court has held that use of the trade mark EIPOTT in relation to the attractive egg cup holder displayed above constituted an infringement of Articles 9(1)(b) and (c) of the Community Trade Mark Regulation. The fact that the word eiPott ("egg pot" in English) sounds uncannily like "iPod" didn't help.

Writes Anna Sophie Steinmeister, (Bardehle Pagenberg, Munich), in her note "'Humorous' mark not protected by freedom of art", published online on World Trademark Review here:

"The decision is also significant in that it establishes general rules on the issue of whether the user’s right to freedom of art may prevent a finding of trademark infringement. In this respect, the decision shows that use of a trademark in a witty and humorous manner will not imply that there is no trademark infringement if the mark is used for the main purpose of exploiting its distinctiveness".