Dutch collections include art looted during World War II

It has been reported that the art collections of the Palace Het Loo, the Rijksmuseum and three other museums are thought to include pieces and artifacts that were looted from a Jewish family during World War II.

The NL Times explains that:

In total, 15 pieces of a valuable Meissen porcelain dinnerware ware set may have been stolen from the Gutmann family. The items may have been put up for auction in 1934 under coercion from the Nazis.

Now, 80 years after the fact, Amsterdam investigation bureau Artiaz was able to trace the pieces, to the museums...

Artiaz traced the dinnerware set pieces by looking through old auction documents... 

The items are part of a unique 435-piece Meissen dinnerware set depicting village scenes, which was given to Willem V around 1774 as a gift from the United East-Indian Company. The prince sold the set during exile in England.

Artiaz also said that it was controversial that the Ekkart Committee, which was appointed on 1 April 1999 to supervise the provenance research carried out on works of art confiscated during World War II and repatriated to Holland from Germany after the war (the "NK Collection"), failed to identify that the pieces had been looted. However, with the continual stream of new claims over artworks which were stolen from Jewish families during World War II, perhaps this is the least surprising aspect of the story.

Source: NL Times, 14 May 2014.

Nazi looted painting returned

Another painting which was seized by the Nazis during World War II [an unfortunately very familiar scenario] has been returned to Poland [a not-so-usual result].

After almost 6 years of investigations, the US Immigration Customs and Enforcement's Homeland Security Investigations (HSI) announced the return of "Saint Philip Baptizing a Servant of Queen Kandaki" by German artist Johann Conrad Seekatz on 6 February 2014. On the same day, a ceremony was held to officially hand the paining back to Poland.

HSI's press release detailed their investigations:

In June 2008, HSI New York special agents were notified by the Consulate General of the Republic of Poland that several national treasures of their cultural heritage looted during World War II were being offered for sale in the United States. 

HSI New York agents met with Polish officials who provided supporting documentation to assist in the identification and recovery of the looted Polish work of art. HSI agents initiated an investigation and identified that the painting came into the possession of Doyle New York Auctioneers and Appraisers in about October 2006 and was sold under its erroneous name for approximately $24,000 to Rafael Valls Gallery in London. 

An expert from the National Museum in Warsaw, delegated by the Polish Ministry of Culture and National Heritage, examined the painting in London with the full cooperation of the Rafael Valls Gallery and it was determined to be the same painting that was looted from Warsaw in 1944. In April 2012, HSI received an evaluation of the painting from the Ministry that the painting was identified as its true name and artist... 

On July 12, 2012, after learning the painting was stolen, it was seized by HSI agents from the London gallery by stipulation order with the assistance of the US Attorney’s Office for the Southern District of New York (SDNY). The painting was returned to New York from London leading to the Feb. 6 repatriation to the Republic of Poland.br />

Three other looted artworks were previously returned to Poland in 2010 and 2011. It remains to be seen if there will be others.

The Polish Ministry of Culture and National Heritage runs an on-line database which details the country's wartime losses. There are thousands of artworks which are still missing.

Read the full HSI press release here. 

Looted Klimt claim

We have not had a post about looted Holocaust art for a while.

We have previously reported on the return of artworks seized by the Nazis, including paintings by Gustav Klimt.

This week comes the news that a new claim has been filed in Austria in relation to another Klimt work, the Beethoven Frieze.

A section of the Beethoven Frieze (1902)

This claim, however, relates not to the return of the work per se, but rather the effect of former Austrian law on those who reclaimed the work.

The New York Times explains:

The gold-painted frieze was owned by the Lederer family, wealthy Austrian Jews who were important patrons of Klimt’s. When the Nazis invaded Austria in 1938, the family escaped to Switzerland, but its extensive art collection was seized and its once formidable industrial empire bankrupted. Many of the family’s valuable works, including 18 Klimts, were destroyed in the final days of the war. 

The mammoth frieze survived and was formally returned to Erich Lederer, the family heir, after the war. But there was a hitch. The Austrian government would grant him export licenses for his other artworks only if he sold the “Beethoven Frieze” to the state at a cut-rate price, Mr. Lederer’s heirs say.

In a 1972 letter to Bruno Kreisky, then the Austrian chancellor, Mr. Lederer complained about what he considered government extortion, writing that officials were “trying to force me to my knees” and thinking “why won’t he finally die, this LEDERER!” 

Mr. Lederer finally agreed to sell the frieze to the government in 1973 for $750,000: half of its estimated worth at the time, according to an evaluation by Christie’s. Since 1986, it has been on view at the turn-of-the-century Secession gallery, where it was first shown at a 1902 exhibition named after Klimt’s breakthrough art movement. 

Georg Graf, a law professor and restitution expert at the University of Salzburg, who is supporting the family’s claim, said, “While the Austrian Republic did formally return the artwork after the war, it ultimately forced Erich Lederer to sell it back in old age by upholding the export ban.”

In 2009, the Austrian government amended its restitution law to apply to property that was sold at a discount because of that ban. 

It is under this law that the Lederer family filed its claim on Tuesday to the government’s Art Restitution Advisory Board. This panel will, in turn, make a recommendation about the “Beethoven Frieze” to the Austrian minister for education, the arts and culture, Claudia Schmied, who is to make the final decision. 

This looks like it is going to be one of the more significant cases brought under the new law.


Source:  The New York Times, 15 October 2013

US Court of Appeal rejects Nazi theft claims

The US Court of Appeals for Second Circuit last week affirmed in its entirety the judgment of the District Court in relation to an ownership dispute concerning this 1917 drawing by Egon Schiele known as Seated Woman With Bent Left Leg (Torso):

 

As we reported here, the case was brought by David Bakalar who sought a declaration that he was the lawful owner of the work having purchasing it from a dealer.

On the other side, were Milos Vavra and Leon Fischer who were the heirs to Fritz Grunbaum, a prominent Austrian Jewish art collector, who owned the work before he was murdered by the Nazis in 1941. Vavra and Fischer claimed in the alternative that either (i) the work had been stolen by the Nazis after Grunbaum's arrest in Vienna in 1938 or (ii) the drawing had been stolen from the Grunbaum estate.

The District Court for the Southern District of New York awarded judgment to Bakalar on the basis of laches. In this respect, the Court noted that Vavra and Fischer ancestors' were aware of, or should have been aware of, their potential intestate rights to Grunbaum's property, and were not diligent in pursuing their claims to the work, which meant that Bakalar was Prejudiced in his ability to garner evidence to vindicate his rights in the work. The District Court also found that was not looted by the Nazis.

Vavra and Fischer appealed on the basis that that the District Court committed two errors of law bearing on the laches defense and challenged the finding that Bakalar was prejudiced by their ancestors’ delay in pursuing the work.

The Court of Appeals rejected the appeal in full finding no merit in Vavra and Fischer’s arguments. It held that there was no clear error in the findings that Vavra and Fischer’s ancestors knew or should have known of a potential claim to the Drawing, that they took no action in pursuing it, and that Bakalar was prejudiced in the litigation as a result of that delay. It was therefore sound to recognize Bakalar’s title on the basis of his laches defense.

This is an important decision for the New York art market which favours the rights of dispossessed former owners over the rights of good faith purchasers of stolen property, to ensure there is a balance between both parties' rights. Claims can be made by dispossessed owners, but they need to be made in good time in order not to prejudice the purchasers' ability to defend their rights.

The decision of the US Appeals Court can be found here.

Stolen art returned

It is not often easy to predict which way decisions in respect of Nazi stolen art will go, so some good news from the Courthouse News Service.

This week, the US government returned the 400 year old painting of "Cristo Portacroce" (Christ Carrying the Cross) by Italian artist Girolamo Romano to the family of former owner, Federico Gentili di Giuseppe.


Giuseppe had purchased the painting at the beginning of the 20th century. However, when he died in 1941, in Nazi-occupied France, his estate was auctioned off and his heirs were prohibited from claiming the painting due to the anti-Semitic laws in place at the time. As a result, the painting was illegally sold in a forced sale in 1941.

The Courthouse News Service reports that:

Giuseppe's grandchildren reached a watershed moment in their efforts to reclaim the artwork in 1999, when the Paris Court of Appeals forced the Louvre to return five paintings in a landmark decision for World War II plunder.

In March 2011, "Christ Carrying the Cross" was imported into the U.S. for a temporary exhibit at the Mary Brogan Museum of Art and Science in Tallahassee, Florida.

On a lead from Interpol, the U.S. Attorney's Office seized the painting months later and returned it to Giuseppe's heirs…

Source: Courthouse News Service, 19 April 2012

Ay Ay - time for an update?

With the members of the A&A team in various national and international manoeuvres, the “latest” in art and law has become the “most recent”. Therefore, it seemed like a good time for an update of all such recent news.

Ai Weiwei still missing

Firstly, by way of update, following on from my report here, there has still been no sign of Ai Weiwei since he was detained at Beijing airport at the beginning of April.

Still little information is available. All the police have said is that he is under investigation for economic crimes. However, his family have not been notified of his detention, as is said to be usual.

It is worth remembering that such blatant violations of basic human rights continue to take place around the world.

Meanwhile in the Forbidden City

A man has been arrested after thieves managed to break in and steal several pieces of art from a temporary display in a museum in the Forbidden City in Beijing. A couple of pieces were subsequently recovered nearby, however it does not appear that the arrest has lead to the recovery of the rest of the works.

While the Forbidden City will now no doubt bulk up their security, because the works in question were on loan from the Liang Yi Museum in Hong Kong, it remains to be seen is whether the incident nevertheless has an effect on art works being loaned to China by foreign galleries and museums.

New Nazi art recovery website

Another tool to assist in the recovery of cultural property that was stolen, looted, seized, forcibly sold, or otherwise lost during the Nazi-era has been launched.

In addition to the tools discussed here, here and here, further to the international collaborative efforts of the UK National Archives, the French Diplomatic Artive Center, the Central State Archive of Ukraine, the Belgian State Archives, the Commission on Looted Art in Europe, the Claims Conference, the US Holocaust Museaum, the US National Archives, the German Historical Museum and the Federal German Archives, records of artworks are now available through the International Research Portal.

The collaboration is was established to fulfill the 1998 Washington Conference Principles on Nazi-Confiscated Art, the 2000 Vilnius Forum Declaration and the 2009 Terezin Declaration, in particular on the importance of making all records of Nazi-confiscated art publicly accessible.

Let us hope that the portal improves the location and return of looted and/or lost art to its rightful owners.

A success story

Last month a holocaust survivor had a Gustav Klimt painting, that had belonged to his grandmother before she was arrested by the Nazis and deported to a concentration camp during the Second World Warm, returned.

Back in 1941, Georges Jorisch's grandmother had a collection of Klimt paintings which were seized after her arrest. Jorisch tracked one of those paintings, Litzlberg am Attersee, to the Salzburg Museum which had acquired it in 1944.

In quite a rare move, of which there are unfortunately not enough, the museum accepted that the painting should be returned to its rightful owner.

Origami copyright case

An anonymous reader has helpfully alerted me to an interesting complaint filed, at the end of April 2011 in the US District Court of the Northern District of California by a group of six artists seeking damages for copyright infringement from another artist.

The plaintiffs claim to be experts in origami, and it is the copyright in their origami models that they allege has been infringed. Specifically, it is claimed that the so-called “crease patterns” created and published by the plaintiffs for their some of their origami models have been copied. As the complaint explains: “The lines of a crease pattern represent the folds needed to create a three-dimensional origami model from a sheet of paper, but the intricacy of these geometric diagrams gives crease patterns their own aesthetic appeal. Crease patterns thus lend themselves to derivative works, such as colorized versions.”

The defendant is Sarah Morris, an internationally known painter and film maker, who debuted a set of 37 paintings entitled the “Origami series” in 2007, which has now been exhibited around the world. A plaintiffs allege that a large number of the Origami series painting are based on their origami designs and Morris has merely transferred the crease patterns to canvas and applied paint to the spaces between the lines.

Comparisons of the crease patterns and Morris' works are exhibited to the complaint, and include the following:


More examples can be found here.

Any thoughts on the merits of the claim? Do the origami artists have a good claim?

Don’t Mess with My Sculpture! Visual Artists Rights in Action

In July 2010, the New Jersey artist David Ascalon started a lawsuit against the Jewish Federation of Greater Harrisburg on the basis that his rights under the US federal Visual Artists Rights Act 1990 (VARA) had been violated in relation to a Holocaust Memorial on the banks of the Susquehanna River in Harrisburg, Pennsylvania’s state capital, which was installed in 1994.

VARA is effectively the US equivalent of moral rights and limits how a work of art may be disposed of or altered. These rights are unaffected by sale of the physical work of art or assignment of the copyright in the work. In other words, even though David Ascalon had sold the memorial to the Jewish Federation, he still retained certain rights in respect of how the Jewish Federation could use the sculpture.

The artist claimed that his rights were violated by the removal of his name from the sculpture’s base and the restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel. After what was described in the press release as “several months of amicable negotiations among the parties” the parties reached a settlement on 7 February 2011 which includes providing David Ascalon with access to the sculpture to remake the “barbed wire” element and the restoration of his name to the sculpture.



This case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose.



For images of what the sculpture looked like before and after, see here.
To read the original complaint, click here.

Art's Cold War Continues

Although now overshadowed by more recent news from the east, it was announced last week that Russia will maintain its ban on sending any new art exhibitions to the US. The ban was imposed in response the decision of the US district court for the DC Circuit in the case of Chabad-Lubavitch v Russia.

The case relates to an archive of 12,000 books and manuscripts and 50,000 other documents collected by the Sixth Lubavitcher Rebbe, Rabbi Joseph Isaac Schneersohn, which was seized by the Nazis, and subsequently claimed by Soviet during World War II. After apparently exhausting all diplomatic avenues, in December 2008, the Brooklyn-based Chabad-Lubavitch Hasidic movement filed suit against Russia claiming ownership of the archive. In a ruling in August 2010, the US court confirmed that the Russian government must return the archive to Chabad-Lubavitch. However, Russia did not accept the judgment as valid, insisting that the collection is part of its state archive, and, in any case, claiming that the US district court does not have jurisdiction over the matter. Therefore, following the court's judgment, Russia declared that it would not send any art exhibitions to the US until the dispute over was satisfactorily resolved.

On 20 January 2011, Russia's Culture Minister Alexander Avdeyev confirmed that the ban remains in place, stating:

"We stopped sending exhibitions to the United States in August (because) one American organisation made a completely illegitimate claim on this collection of books."

It seems that the main reason for the ban is that Moscow fears the US authorities will seize any Russian art coming into the country and hold it as security in exchange for return of the archive.

This dispute is damaging to all sides of the argument, but particularly to both the US and the Russia art markets. Since Russia refuses to accept the jurisdiction of the US court, it appears it is up to the diplomats to find a solution. Not really a promising state of affairs. After all it took them 40+ years to resolve the actual cold war.

Some Russian art currently showing at The Tretyakov Gallery in Moscow. Not in the US.

March 1895, from the exhibition Isaak Levitan. To the 150th anniversary.

Source: AFP, 20 January 2011

Recovering more Lost Art

Despite this bad news, as we have previously noted here and here, there are a number of other organisations dedicated to locating and returning lost and/or looted art to its rightful owners.

One such organisation is the Commission for Art Recovery, which was established in 1997 to assist efforts to restitute art that was seized, confiscated, or wrongfully taken as a result of the policies of the Third Reich. The Commission deals with governments, museums, and other institutions internationally to encourage and help museums and governments to research, identify and publicise works in their possession that may have been stolen during the years of the Third Reich in order to facilitate the return of these works to their rightful owners.

Another is the Lost Art Database which is run by the Koordinierungsstelle Magdeburg - Germany’s central office for the documentation of lost cultural property. This database was set up jointly by the Government and the Länder of the Federal Republic of Germany, and registers cultural objects which as a result of persecution under the Nazi dictatorship and the Second World War were relocated, moved or seized, especially from Jewish owners.

The database is divided into two areas. In one section, it is possible to possible to register cultural objects which were lost by public institutions or private individuals and institutions as a result of Nazi rule and the Second World War, and to request a world-wide search via the Lost Art Internet Database. Conversely, owners or custodians of cultural objects, who are uncertain as to the provenance of those objects can search to determine whether the objects have been sought elsewhere. On the other side, it is also possible to register cultural objects, where it is known that they were taken illegally from their owners or relocated to another place as a result of the war. This part of the database also contains reports on cultural items with an uncertain or incomplete provenance, which suggests the possibility of illegal dispossession or a removal and relocation due to the war. Institutions and individuals who have suffered such a loss can then search whether the cultural objects they are looking for are contained in the list of found objects.

It is reported that with the use of this database, among other things, the reclamation of works lost during the Second World War has recently increased. Indeed, the Berlin State Museums reports that they have recovered more works in the past decade than in the previous several decades.

This is reflected in a current exhibition in Berlin's Alte Nationalgalerie entitled “Loss and Return”, which documents Berlin's most recent attempts to recover works lost during World War II, and which displays a number of works which were lost but have been recovered. One such work is August Wilhelm Ahlborn's "View of Florence" which disappeared during the war after it was loaned by Berlin's National Gallery to the Nazis in 1934 to decorate the Reich Chancellery. This painting, which for decades was thought to be lost for good, appeared out of nowhere in 2009 when a Berlin auction house offered it for sale.

Such stories inspire hope that other artworks, which have been given up as lost or destroyed, or which were sold without the artists' knowledge and promptly disappeared, remain to be discovered and reclaimed by their rightful owners

Source: The Wall Street Journal, 17 December 2010

Grosz v MoMA

More bad news for those seeking to reclaim ownership of a number of artworks which were sold in dubious circumstances during the Second World War.

On 16 December 2010, the United States Court of Appeals, Second Circuit confirmed the decision of the South District Court of New York that the claim was time-barred.The case related to three works of German artist Georg Grosz, which were confiscated by the Nazis, and, by various routes, eventually ended up in the collection of the Museum of Modern Art in New York (MoMA).

>> Poet Max Hermann-Neisse with Cognac << >> Self-Portrait with Model <<

>> Republican Automatons <<

Grosz heirs brought the claim against MoMA following several years of unsuccessful negotiations between the parties. However, the claim was only filed more than three years after the Director of MoMA had sent a letter to Grosz's heir saying that the Museum had voted not to relinquish the art. Accordingly, as it was also decided in the case of Boston Museum of Fine Arts and the Kokoschka painting, the Court held that the action should be dismissed as it fell outside the Statute of Limitations.

See here for the decision of the Court of Appeals.

See here for the decision of the District Court.

Holocaust art claims

Over the last few days there has been some good and bad news for Holocaust survivors and their relatives.

Database of Art Objects at the Jeu de Paume

Firstly, some good news in the recent announcement that more than 20,000 unrestituted art objects which were looted by the Nazis during the Second World War have been listed in a new online database. Entitled the “Database of Art Objects at the Jeu de Paume”, the database lists the thousands of cultural valuables which were seized from French Jewish and Belgian Jewish collections by the Einsatzstab Reichsleiter Rosenberg (ERR) and taken to the Jeu de Paume building in the Tuileries Gardens in Paris.

The ERR was a special unit formed during the War with the purpose of plundering cultural artefacts from Nazi-occupied countries. Between 1940 to 1944, the ERR seized not only books, archives, and other research materials, but paintings, antique furniture, carpets, tapestries, objets d’art, and antiquities. The ERR then produced a detailed inventory of its growing collection, with many of the items being photographed and documented.

The database allows the remaining registration cards and photographs produced by the ERR covering more than 20,000 to be searched in illustrated form. The hope is that the database will enable the objects to be claimed and returned to their rightful owners.

UK heir to £100m Steiner art collection

In more good news, it has been reported that an English descendent of Jewish art collector, Jenny Steiner, is to receive a share of a £100m fortune following a Holocaust restitution claim. The collection of more than 18 masterpieces which was confiscated by the Nazis had remained unclaimed for more than six decades. However, the works are now gradually being recovered and sold, and following extensive research by the Jewish Federation, it appears that the English beneficiary is a second generation descendent of the original collector, and thus entitled to a substantial share of the proceeds of the paintings.

Boston Museum of Fine Arts retains ownership of Oskar Kokoschka's Two Nudes (Lovers)

The bad news is that the sole surviving heir of Austrian Jewish art collector Oskar Reichel has not had the same success. Claudia Seger-Thomschitz had sought to recover possession of Oskar Kokoschka's Two Nudes (Lovers), a valuable oil painting formerly owned by Reichel, but presently held by the Boston Museum of Fine Arts (MFA). However, on 14 October 2010, the United States Court of Appeals, First Circuit affirmed the District Court’s ruling that Seger-Thomschitz's claims were time-barred on statute of limitations grounds.







Two Nudes (Lovers)
1913 Oskar Kokoschka, Austrian, 1886–1980










By way of background, Seger-Thomschitz had claimed that she was the rightful owner of the painting as Reichel had only sold the under duress for insufficient consideration after Austria was annexed by the Third Reich in 1938. Accordingly, Seger-Thomschitz’s attorney had sent a letter to the MFA on 12 March 2007, demanding the return of the painting. The MFA was then said to have undertaken an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim appeared valid or not. The MFA concluded that the original transfer of the painting had been valid. Consequently, on 22 January 2008, the MFA filed an action in the District Court of Massachusetts seeking a declaratory judgment to confirm its rightful ownership of the painting. This was followed by a motion for summary judgment arguing that Seger-Thomschitz's counterclaims were time-barred as a matter of law.

The District Court entered judgment in favour of MFA. Applying the three-year Massachusetts statute of limitations applicable to tort and replevin actions, the District Court held that the causes of action against the MFA accrued when the Reichel family and/or Seger-Thomschitz had discovered or should reasonably have discovered the basis for their claims to the painting. It then addressed both the Reichel family's knowledge and Seger-Thomschitz's knowledge, concluding that all parties should have known about the basis for their claims more than three years before Seger-Thomschitz made her demand on the MFA through her attorney's letter.

Seger-Thomschitz appealed. However, the First Circuit Court was not asked to judge the merits of Seger-Thomschitz’s claims, but rather only whether her claims were time-barred as a matter of law. Thus, the Court concentrated on the applicable law of limitations that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues” (Mass. Gen. Laws ch. 260, § 2A). It noted that the District Court had analysed the accrual question by applying the so-called discovery rule, which provides that a cause of action accrues when “an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury” and agreed with the approach that the party seeking the benefit of the discovery rule has the burden of showing (1) that she lacked actual knowledge of the basis for her claim and (2) that her lack of knowledge was objectively reasonable.

With regards to Seger-Thomschitz’s knowledge, the Court said that the location of the painting had never been a secret – it had long been on public display at the MFA. Moreover, it was listed in a provenance database on a publicly accessible website, and several published books and at least one catalogue raisonné of Kokoschka's works had identified the MFA as the current holder of the painting. Finally, the Getty Provenance Index, a database of provenance information that has been searchable on the internet since 1999, also noted that the Painting was part of the MFA's collection. Thus, the Court said, there was no question that the MFA's possession of the painting had long been discoverable with minimal diligence.

Furthermore, by her own admission, Seger-Thomschitz had "learned that the Nazis had confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako." That information had put her on notice that she might have a claim to other artworks that were previously owned by Dr. Reichel and she retained a Viennese attorney that same year "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Yet she did not demand the return of the painting in issue from the MFA until 2007, well over three years after she was contacted about the Romako works.

The Court also looked at the Reichel family’s knowledge of the conditions under which the painting had been transferred and whether the family sold have known that the painting was sold under duress. In this respect, it noted that the District Court had held that the family "had ample notice of any possible claim to the painting decades before the filing of this lawsuit." Indeed, the District Court had noted that Oskar Reichel's son Raimund had written several letters to art historians during the 1980s in which he was indicated that he remembered the painting and knew the details of its transfer. Thus, the Court said that it was this knowledge, plus the fact that the Reichel family sought compensation for some other artworks, but not the painting, which led the District Court to conclude that the family's failure to lay claim to the painting was not due to ignorance about the availability of restitution.

Thus, the First Circuit Court concluded that:

“Any reasonable jury confronted with the summary judgment record would conclude that Seger-Thomschitz's causes of action accrued no later than the fall of 2003, when she learned that the Nazis had confiscated artworks from Dr. Reichel, and could then, with reasonable diligence, have discovered her claim to the painting. Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.”

Seger-Thomschitz also argued that the Massachusetts statute of limitations should be set aside because it conflicted with the federal government's foreign policy on Nazi-confiscated art. In this respect, Seger-Thomschitz listed a number of statutes which were claimed to constitute evidence of a federal policy disfavoring the application of rigid limitations periods to claims for Nazi-looted artwork. Seger-Thomschitz relied on Supreme Court jurisprudence in American Insurance Association v Garamendi that "state law must give way" when it is in "clear conflict" with an "express federal policy" in the foreign affairs context.

However, the First Circuit Court also dismissed this argument. It found that none of the language of the Acts cited by Seger-Thomschitz was sufficiently clear and definite to constitute evidence of an express federal policy against the applicability of state statutes of limitations to claims for the recovery of lost, stolen, or confiscated art. Furthermore, the Court held that even if there were an express federal policy disfavoring overly rigid timeliness requirements, the Massachusetts statute of limitations would not be in “clear conflict” with that policy. Rather, the Massachusetts statute of limitations struck a reasonable balance between restitution and repose, such that where a claimant in a missing or confiscated art case could demonstrate that she diligently pursued her property, she could defeat summary judgment.

Thus, unfortunately for Seger-Thomschitz, the District Court’s statute of limitations ruling. was affirmed.

However, that the Circuit Court did make an important point at the end of its decision:

“Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA's acquisition of the Painting in 1973, we note the MFA's own disclosure that, when confronted with Seger-Thomschitz's claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: "[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange." American Association of Museums Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)"

It is hoped that this encourages art galleries and museums to heed the Guidelines before acquiring objects for their collections.