Gustav Klimt's "Portrait of Adele Bloch-Bauer I" (1907) is one of the most famous Nazi-looted artworks restituted to the original owner's heirs by a court. (via Wikipedia)

Gustav Klimt’s “Portrait of Adele Bloch-Bauer I” (1907) is one of the most famous Nazi-looted artworks restituted to the original owner’s heirs. (via Wikipedia)

Over the weekend, the New York Times published a fairly condemnatory article about the increasing failure of American museums to comply with the Washington Principles on Nazi-Confiscated Art, which were written in 1998 and call for the restitution of artworks looted by the Nazis to descendants of the original owners. The story cites a series of recent articles, forums, and rulings that call into question whether museums are actually deciding claims based on their merits. At least one museum is unhappy with the way it’s represented in the piece — the Toledo Museum of Art (TMA), and in response the institution has posted a vigorous self-defense on both its homepage and Facebook page.

The Times report, written by Patricia Cohen, is relatively even-handed, but it definitely gives more space to the critics of museums than the museums themselves. These people, including lawyers and government officials, say that many museums have been less than forthcoming about the provenances of some of their works, and about their research into the histories of contested works. Others have gone as far as preemptively bringing cases to court in order to block potential claims and legally secure their ownership. That’s where the Toledo Museum comes in. Cohen writes:

In some of the cases, museums like the Detroit Institute of Arts, the Toledo Museum of Art in Ohio, the Museum of Fine Arts in Boston and the Solomon R. Guggenheim Museum have tried to deter claimants from filing suit by beating them to the courthouse and asking judges to declare the museums the rightful owners.

That’s the only time the TMA is mentioned in the piece, but the museum has taken issue with what it calls “a misrepresentation of the facts.” The museum says that it did go to court over a painting, Paul Gauguin’s “Street Scene in Tahiti,” but only after it had undertaken extensive research of a claim and determined that it “was not founded in fact.” The statement explains:

The woman had sold the painting in France before the war began to Jewish art dealers with whom she had previous dealings. Both TMA and the Detroit Institute of Arts, a co-defendant, presented our findings to the court and to the claimants.  The Museum filed to have the case dismissed on the grounds the statute of limitations had expired. This court action, which was hinted at by the Times reporter, was to expedite the conclusion of the case (and to mitigate the extraordinary additional legal costs associated with going to trial). In 2007, in light of the evidence presented, the family members dropped their claim.

Gauguin's "Street in Tahiti" (1891) was the subject of a disputed claim at the Toledo Museum of Art. (via

Gauguin’s “Street in Tahiti” (1891) was the subject of a disputed claim at the Toledo Museum of Art. (via

The museum goes on to point out that it provides both the results of its provenance research into the painting and the federal court judgement on its website.

Basically, when you get down to the details, the difference is slight but real: the TMA went to court in an effort to have the outside claim dismissed, whereas an institution like the Guggenheim (along with the Museum of Modern Art) actually asked a judge in 2007 to preemptively declare its ownership of a Picasso painting. So why did Cohen lump them together?

Well, if we’re being honest, it’s likely a simple fact-checking error or slippery reporting — a labyrinthine topic, a tight deadline, a search for more examples to prove a point. But even presuming that the Toledo Museum was acting in good conscience, it’s easy to see how their case fits into a larger trend. As Robin Cembalest reported in Art News in 2010, in a piece that offers a more thorough, less generalized take on the same topic than Cohen’s:

According to restitution advocates, such legal strategies make it impossible for the claims to be considered on their own merits. “Major museums have engaged in the concerted effort to intimidate claimants and to assert the statute of limitations to prevent an independent review of the validity of the claimants’ position,” says Charles Goldstein, counsel to the Commission for Art Recovery. “They try to chill claims, because if you walk in to one of these museums and make a claim, you can expect to be a defendant in a federal lawsuit.”

The issue here is the intimidation factor — the defensiveness and sometimes hostility emanating from many American museums about Holocaust restitution claims.

Yet when you look closer, that’s not even the biggest issue. The larger problem is, as Cohen mentions in her piece, that these disputes are settled in regular US courts, as opposed to through an independent mediation body like the ones that exist in Europe. The TMA, it seems, had no other recourse but to head to court, and its case seems well-enough-intentioned; overall, however, the legal set-up lets museums act badly. It offers them loopholes and the chance to fight to have claims dismissed on technicalities like statutes of limitations. And it further intimidates potential claimants, since, as Goldstein says in the passage above, they know they’ll have to find a way to fund their defense in lawsuits that often take years to resolve. Most art museums, even if they’re relatively small, are larger and better equipped than individuals.

Even George Grosz, an influential artist himself, couldn’t win a fight against MoMA. His family alleges that three works owned by the museum were sold under duress after he fled the Nazis, but the lawsuit was thrown out based on the statute of limitations.

Jillian Steinhauer

Jillian Steinhauer is a former senior editor of Hyperallergic. She writes largely about the intersection of art...