The latest in a string of issues involving Nazi stolen art is making reverberations around the arts community, and once again prompting a discussion regarding the provenance and authenticity of historical works of art.
The collective artworks of Dr. Hans Sachs, a Jewish dentist, residing in Germany during the early 20th century, are coming up for sale at London auction house Christie’s. Sachs, an avid collector of graphic works of art, had over 12,000 posters and other objects in his collection. Christie’s is estimating that Sachs’ works – they’re auctioning just 100 posters from the entire collection – could be valued as much as a half million dollars, with the starting price of some works beginning at $1,150 and ranging up to $26,000 per piece.
So where does the issue lie? Like most art collectors living in Nazi Germany, Sachs was susceptible to the Fascist government. The Nazis seized Sach’s works, and in his lifetime he was unable to determine whether or not his collection remained intact. When they were finally found nearly 20 years after his death, his son embarked on a legal battle that recovered some, but not most, of the works. Here, we’ll discuss the various legal issues that have arisen throughout the case, and whether or not Sachs may still have a claim under certain areas of law.
A Legacy of Collecting Lost
Dr. Hans Sach was so passionate about the bold, graphic posters of the early 20th century that he formed a collecting society in Berlin and published an international poster magazine. His collection inevitably grew by thousands, and included some of the greatest graphic artists of the generation, including Egon Schiele, Alfred Roller, and Koloman Moser.
In 1939, during a Nazi raid that’s known as the Night of the Broken Glass, Sachs was arrested by the Gestapo and sent to prison, and his poster collection seized. Though he wouldn’t remain imprisoned for very long, he would never see his poster collection again.
When Sachs was released, he left with his family to the United States, where he would remain until his death in 1974. In 1961, he managed to petition for restitution fo his works under the German Restitution Act, which permitted German citizens to recover monetary damages for artworks and other items stolen under the fascist government. Sachs was awarded approximately $50,000 for his collection, believing that his beloved poster collection was either destroyed or gone forever.
Years later, his son would come across information that the collection was in the possession of the German Historical Museum. By doing a simple Google search, Peter Sachs realized that his father’s collection was still salvageable
Accounts differ as to whether Sachs found out about his beloved collection’s existence before his death in 1974, but decades later, his son stumbled across a reference to the archive in the German Historical Museum (DHM) during an online search. When his initial request for the return of the works was denied, Sachs set out to prove his rightful ownership in court. While Sachs and the Museum settled in a manner that proved favorable for Sachs, there are two important areas of law that need to be understood and visited.
Understanding the Issues Involved in Retrieving Stolen Art
In order to determine whether or not Sachs is entitled to the collection, he must prove that the collection actually did belong to his father. In the art world, proof of authenticity and ownership is considered the work’s provenance – provenance essentially determines the work’s origin and whether or not it is truly an authentic piece of art.
According to the International Foundation for Art Research, the provenance of a work of art is “a historical record of its ownership and an indicator of economic and market conditions influencing the sale or transfer of the work of art.” An ideal provenance history would provide a documentary record of owners’ names; dates of ownership, and means of transference, i.e. inheritance, or sale through a dealer or auction; and locations where the work was kept, from the time of its creation by the artist until the present day. Unfortunately, such complete, unbroken records of ownership are rare, and most works of art contain gaps in provenance. Likewise, proving provenance on German art recovered from the early 20th century is even harder because few documents remain that would support a claim.
Luckily, Sachs was a prolific poster collector and left a paper trail of his involvement with enough witnesses to back up his reputation as one of the world’s foremost poster collectors. But what would need to be done to prove the provenance of lesser-known, more obscure collectors’ art collection given the difficulties in obtaining supporting documents?
Nazi Stolen Art and The Foreign Sovereign Immunity Act
Sachs was able to achieve the desired outcome of his case without having to resort to the Foreign Sovereign Immunity Act, but the tactic would have been a clever argument had he not achieved such a positive result. We’ve previously discussed FSIA in the context of Nazi stolen art when we gave a legal overview of how Marie Altmann, niece of Adele Bloch-Bauer, was successfully able to recover Gustav Klimt’s “The Woman in Gold” from an Austrian state museum.
Under the FSIA, foreign states are presumed to be immune from the jurisdiction of U.S. courts and liability in US lawsuits unless the property was taken in violation of international law, and fell within one of the several exceptions. The “expropriation exception,” allows a foreign state to be sued over a property located in the foreign state and the property holder engaged in a commercial activity in the United States. To prevail on the FSIA, then, one must show that the entity subject to the suit is somehow engaging in commercial activity in the U.S, as noted by the FSIA below:
[T]he issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in “trade and traffic or commerce” …. (See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614, 112 S. Ct. 2160 (1992).)
Foreign states, their agencies, and other state-owned enterprises are often engaged in transnational commercial activities in foreign countries, such as energy exploration, mining, banking, maritime and aerial transportation, and tourism, to name just a few. In the case of “Woman in Gold,” the court found that marketing of exhibitions in the United States was enough to show grounds for an FSIA claim.
Once it can be shown that an entity is engaged in such commercial activity, the claimant has to demonstrate that the FSIA should apply retroactively, which won’t always be easy to do. In Nazi art cases, this will usually turn on whether the entity had knowledge of the fact that works were stolen. This can be proven rather easily when there’s a claim for restitution filed: if the owner of the art didn’t miss it or didn’t find it valuable, it’s unlikely he would be petitioning the government for its retrieval or its compensation. That argument worked for Ms. Altmann, who paved the way for future Nazi stolen art cases. Thanks to her, retrieving Nazi stolen art, even in an absence of provenance, is just a little bit easier.