Art Talk is a series of rotating columns which explore current issues in the art market.
· Limits of Ownership 1
· Limits of Ownership 2
· Statute of Limitations
· The Discovery Rule
· Nazi Confiscated Art
· Abandoned Property
DETERMINING THE VALUE OF
INVESTING IN ART
INSURING FINE ART
NAZI CONFISCATED ART
an excerpt from
by Aaron Milrad
The possession and ownership
of significant numbers of artworks has been affected by the Second
World War. Hitler intended to create his own museum, and he and
senior members of his staff wanted to enhance their own art collections
by confiscating master works from private collections in conquered
countries; this motivated a significant number art thefts. The
works that were stolen were often hidden for years or placed
in collections that were not open to the public, which makes
it more difficult to identify the original owners. Only recently
have such works begun to reenter the art market, giving rise
to conflicting claims of ownership.52
The repatriation and return of art confiscated by the Nazi regime
or sold to the Nazis under duress has been a continuing and difficult
area of legal concern. The art affected has, in some cases, passed
through many hands, which increases the number of innocent purchasers
who would bear loss if the works were returned to their original
owners. Works that have been purchased by museums or given to
them as gifts may previously have been owned by families exterminated
in the Holocaust. What law is applicable to transactions involving
art that originated in one country and passed through the hands
of purchasers in various other countries, ending in a third or
fourth country? The choice of law will determine the applicability
of a particular statute of limitations.
In 1998, forty-four nations and thirteen nongovernmental organizations
met formally at the Washington Conference on Holocaust-Era Assets
(November 30December 3, 1998) and the National Archive Symposium
on Records and Research Relating to Holocaust-Era Assets (December
4, 1998) to discuss the problems posed by unsettled questions
of assets, including art and art objects.
The following principles with respect to Nazi-confiscated art53
emerged as a consensus of the participants.
1. Art that was confiscated by the Nazis and not subsequently
restituted should be identified.
2. Relevant records and archives should be open and accessible
to researchers, in accordance with the guidelines of the International
Conference on Archives.
3. Resources and personnel should be made available to facilitate
the identification of all art confiscated by the Nazis and not
4. In establishing that a work of art was confiscated by the
Nazis and not subsequently restituted, an agreement should be
made to excuse unavoidable gaps or ambiguities in the provenance
in light of the passage of time and the circumstances of the
5. When art is found to have been confiscated by the Nazis and
not subsequently restituted, every effort should be made to publicize
the known facts in order to locate its pre-war owners or their
6. Efforts should be made to establish a central registry of
7. Prewar owners and their heirs should be encouraged to come
forward and make known their claims to art that was confiscated
by the Nazis and not subsequently restituted.
8. If the prewar owners of such art-or their heirs-can be identified,
steps should be taken expeditiously to achieve a just and fair
solution, recognizing that this may vary according to the facts
and circumstances surrounding a specific case.
9. If the prewar owners (or heirs) of art that is found to have
been confiscated by the Nazis cannot be identified, steps should
be taken expeditiously to achieve a just and fair solution.
10. Commissions or other bodies established to identify art
that was confiscated by the Nazis and to assist in addressing
ownership issues should have a balanced membership.
11. Nations are encouraged to develop national processes to implement
these principles, particularly as they relate to alternative
dispute resolution mechanisms for resolving ownership issues.
The conference did not make a point of focusing on the differences
between civil- and common-law systems regarding good title to
chattels. When the issue was brought up, it was usually to say
that no statutes of limitations should apply to art looted by
the Nazis and their collaborators.
Russia made news by stating it was open to claims from individuals
through their governments, but it defended its controversial
law nationalizing all the art the Soviets found on German soil
at the end of the war.
New Restitution Guidelines for Holocaust-Era Art in Museums
In June of 1998 the Association of Art Museum Directors (AAMD)
adopted guidelines for American museums to deal with works of
art confiscated during World War II and not yet returned to their
legitimate owner. The guidelines are not binding but carry the
force of the AAMD's 175 member museums in the United States,
Canada, and Mexico.
The Association of Art Museum Directors (AAMD) has developed
the following guidelines to assist museums in resolving claims,
reconciling the interest of individuals or their heirs who were
dispossessed of works of art with the fiduciary and legal obligations
and responsibilities of art museums and their trustees to the
public for whom they hold works of art in trust.
A. Research Regarding Existing Collections
1. As part of the standard research on each work of art in
their collections, members of the AAMD, if they have not already
done so, should begin immediately to review the provenance of
works in their collections to attempt to ascertain whether any
were unlawfully confiscated during the Nazi/World War II era
and never restituted.
2. Member museums should search their own records thoroughly
and, in addition, should take all reasonable steps to contact
established archives, databases, art dealers, auction houses,
donors, art historians, and other scholars and researchers who
may be able to provide Nazi/World War II era provenance information.
3. AAMD recognizes that research regarding Nazi/World War II
era provenance may take years to complete, may be inconclusive,
and may require additional funding. The AAMD Art Issues Committee
will address the matter of such research and how to facilitate
B. Future Gifts, Bequests, and Purchases
1. As part of the standard research on each work of art,
a. member museums should ask donors of works of art (or executors
in the case of bequests) to provide as much provenance information
as possible with regard to the Nazi/World War II era; and
b. member museums should ask sellers of works of art to provide
as much provenance information as possible with regard to the
Nazi/World War II era.
2. Where the Nazi/World War II era provenance is incomplete for
a gift, bequest, or purchase, the museum should search available
records and consult appropriate databases of unlawfully confiscated
a. In the absence of evidence of unlawful confiscation, the work
is presumed not to have been confiscated, and the acquisition
b. If there is evidence of unlawful confiscation but there is
no evidence of restitution, the museum should not proceed to
acquire the object and should take appropriate further action.
3. Consistent with current museum practice, member museums should
publish, display, or otherwise make accessible all recent gifts,
bequests, and purchases, thereby making them available for further
research, examination, and study.
4. When purchasing works of art, museums should seek representations
and warranties from the seller that the seller has valid title
and that the work of art is free from any claims.
C. Access to Museum Records
1. Member museums should facilitate access to the Nazi/World
War II era provenance information of all works of art in their
2. Although a linked database of all museum holdings throughout
the United States does not exist at this time, individual museums
are establishing Web sites with information about collections.
Others are making their holdings accessible through printed publications
or archives. To assist research, AAMD is exploring the linkage
of existing sites that contain collection information.
D. Discovery of Unlawfully Confiscated Works of Art
1. If a member museum determines that a work of art in its
collection was illegally confiscated during the Nazi/World War
II era and not restituted, the museum should make such information
2. In the event that a legitimate claimant comes forward, the
museum should offer to resolve the matter in an equitable, appropriate,
and mutually agreeable manner.
3. In the event that no legitimate claimant comes forward, the
museum should acknowledge the history of the work of art on labels
and publications referring to such a work.
E. Response to Claims Against the Museum
1. If a member museum receives a claim against a work of
art in its collection related to an illegal confiscation during
the Nazi/World War II era, it should seek to review such a claim
promptly and thoroughly. The museum should request evidence of
ownership from the claimant in order to assist in determining
the provenance of the work of art.
2. If after working with the claimant to determine the provenance,
a member museum should determine that a work of art in its collection
was illegally confiscated during the Nazi/World War II era and
not restituted, the museum should offer to resolve the matter
in an equitable, appropriate, and mutually agreeable manner.
3. AAMD recommends that member museums consider using mediation
wherever reasonably practical to help resolve claims regarding
art illegally confiscated during the Nazi/World War II era and
F. Incoming Loans
1. In preparing for exhibitions, member museums should endeavor
to review provenance information regarding incoming loans.
2. Member museums should not borrow works of art known to have
been illegally confiscated during the Nazi/World War II era and
not restituted unless the matter has been otherwise resolved
(for example, guideline D3 above).
The federal statutes of the United States (U.S. Code) contain
various provisions relating to theft, stolen property, and cultural
property, the most important of which are outlined below.
The National Stolen Property Act
The National Stolen Property Act,55 first enacted in 1934,
was created as part of title 18 (Crimes and Criminal Procedure),
chapter 113 (Stolen Property), of the U.S. Code provisions regarding,
among other things, transportation of stolen property and the
sale or receipt of stolen property.
Transportation of stolen goods: Whoever transports in
interstate or foreign commerce any goods of the value of $5,000
or more, knowing the goods to have been stolen, converted, or
taken by fraud, shall be fined and/or imprisoned for not more
than ten years (Section 2314).56
Sale or receipt of stolen goods: Whoever receives, possesses,
conceals, stores, or sells any goods of the value of $5,000 or
more, or pledges or accepts as security for a loan any goods
of the value of $500 or more that have crossed a state or United
States boundary after being stolen, knowing the goods to have
been stolen, shall be fined and/or imprisoned for not more than
ten years (Section 2315).
National Stolen Property Act has been held to apply to dealings
in pre-Columbian artifacts. These were classified as stolen because
the Mexican government enacted a law declaring national ownership
of its patrimony. However, the courts have also held that, as
a declaration of national ownership is necessary before illegal
exportation of an article can be considered theft, and as Mexico
did not make a clear and unequivocal declaration as to its ownership
of all pre-Columbian artifacts until 1972, the law would not
apply to pre-1972 dealings in such artifacts.57 In Canada, there
is also the Cultural Property Export and Import Act, which deals
with illegal import and export of cultural artifacts. This is
discussed in chapter 9, "Cultural Property Legislation."
Theft of major artwork: A person who (a) steals or obtains
by fraud any object of cultural heritage from the care, custody,
or control of a museum or (b) knowing that an object of cultural
heritage has been stolen or obtained by fraud (whether or not
the person knows that the object was taken from a museum), receives,
conceals, exhibits, or disposes of the object shall be fined
and/or imprisoned for not more than ten years (Section 668).
"Museum" refers to a museum situated in the United
States, and "object of cultural heritage" is defined
as an object that is more than one hundred years old and worth
more than $5,000, or an object worth at least $100,000. The limitation
period for the prosecution of an offense under Section 668 is
twenty years (Section 3294). This statute and cases under it
are discussed more fully in chapter 9, "Cultural Property
United States Customs rules prohibit the importation into the
United States of pre-Columbian monumental or architectural sculpture
or murals exported from the country of origin (that is,
the country in which such sculpture or mural was discovered).
Pre-Columbian monumental or architectural sculpture or mural
means any stone carving or wall art that is the product of a
pre-Columbian Indian culture of Latin America subject to export
control by the country of origin.58
Next Installment: Abandoned Property
About the Author
Aaron M. Milrad is a member of Fraser Milner, Barristers & Soliciters, a Canadian national
law firm headquartered in Toronto. At Fraser Milner he provides specialized legal services
to clients across Canda, the United States, and other countries who are involved in the visual,
performing, and literary arts, music, publishing, media, and mutlimedia. Mr. Milrad also provides
consulting services, including strategic planing and marketing for creators, companies, nonprofit
organizations, and foundations and tax estate planning for creators, collectors and arts professionals.
To purchase a copy of Artful Ownership, please contact:
American Society of Appraisers, International Headquarters, 555 Herndon Parkway, Suite 125, Herndon, VA 20170
Note from the Editor
Copyright © 2000 by the American Society of Appraisers and Aaron M. Milrad.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form by any means, electronic, mechanical photocopying, recording or otherwise,
without the prior written permission of the American Society of Appraisers, P.O. Box 17265,
Washington, D.C. 20041. (800)272-8258
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