The Legacy of Nazi Art Theft: Legal Precedents of Ownership in Art Law

Art across history, under the guise of its purely aesthetic and academic functionality, has held such a quiet yet powerful grip on economic, social, and political landscapes across the globe. Even Augustus of Ancient Rome recognized its potential cultural power and ability to sway public opinion. We can see in his portrait sculptures he is shown in Greek, Polykleitan/contrapposto stances, symbolizing his will to re-imagine Greekness in a Roman context and modernize society, which worked particularly well for him politically in gaining sympathy with a public yearning for change. Art worked similarly in the 20th century via visual/graphic political propoganda posters: Uncle Sam and the character's impact on military registration during World War I, or Mao's cult-like editorial spreads which proliferated a false utopian image of Communist China. If it is true that art can popularize regimes, sway voters, or promote a positive image of leaders, it can, too, have the opposite, subversive effect on government. Under the punitive provisions imposed by the allied powers after World War I, public morale in Germany was low, which manifested in cheeky, ironic, yet all too real artistic criticism of Germany's government. Here lies the beginnings of governmental art censorship in Germany, which really took off under Hitler's maniacal authoritarian regime in the 30s. He transformed censorship into the ostracization and defacement of modern art, which he deemed "degenerate," and led the Nazis in to a period of looting prominent Dutch and German art collections as well as the creation of a clear distinction between "acceptable" and "degenerate" art. Traditional, Western works that uplifted the image of an Aryan state were looted and put in Nazi officials' private collections or inseminated into the European art market, while modern works were destroyed or defaced. From the collections of over 200 Jewish art dealers, all of whom were sent to their deaths in the height of the Holocaust, 21,000 works of classical art were seized by Nazis - not because of their failure to adhere to National Socialist standards, but because they set those standards as exemplary traditional works, not that the Nazis would have dared to admit the pristine quality of these Jewish collections. Once the war ended and the Nazi party slipped beneath the bedrock of German society, these works were misguided, their original owners murdered, and the massive selection of Rembrandt's, Degas', and Manet's floated aimlessly through the post-war art market. These works have continued to float, and now I raise an ethical question: how should dealers approach ownership of works whose histories are unknown? What do we do now, knowing that stolen art continues to be proliferated even when bought "in good faith"? And how should we go about paying reparations to the victims of Nazi art looting, eighty years after it occurred? These are questions that the niche world of art law must ponder today as it grapples with ownership laws in the cases of Holocaust victim's families and their modern day restitution cases. Using Jacques Goudstikker's collection as a case study, I want to explore in this article the implications of Nazi art theft on modern legality in the art world today, and examine these core ethical questions.

Notebook of Jewish Art Collector Jacques Goudstikker, Photograph courtesy of the New York Times

Jacques Goudstikker was a Dutch Jewish art collector whose impressive collection of rare and highly valuable paintings, made up of "Old Masters" such as Peter Paul Ruebens, as well as Van Gogh's, Mondrian's, and Hieronymous Bosch's. His expansive client list and breadth of works led him to become a reputable and respected figure in the movement of art in the first half of the twentieth century. In 1940, Goustikker and his wife fled Holland in fear of Nazi persecution, and left his estate and collection without a successor in distrust of his employees; if confronted by Nazi officials, Goudstikker's fear was that his potential successor would turn the collection over and keep the profits, essentially erasing his own legacy and contributions to the art world over the course of his extensive career. The idea was to return to Holland after the war, regain proximity to his assets, and continue in the art industry. In his journey to England via ship, Goudstikker fell to his death while visiting the top deck - an anecdote more tragic than ironic. While his fear of the estate being seized or sold by a potential successor was logical, it also left the collection completely alone after his death with no one to protect it. If it had not been for a notebook with a complete record of every item in his collection, totalling over 1,400 paintings, with a detailed description and their acquisition/sale date that was found on his recovered body, Goudstikker's ties to the collection would have been erased completely.

To tell the story of the Nazi's theft of Goustikker's collection, I want to first illuminate why the collection was so attractive to them. And to understand how and why the Nazi's loved Goudstikker's art, one must first understand the basis upon which Hitler judged and valued art. He drew on Paul Shultze-Namburg's theories on art and race, written out in his book "Kunst und Race," in which he made claims about an "aesthetic connection between artistic styles and the supposed racial characteristics of the artists. Hitler used this as the basis for the deligitimization of modern art, which he claimed was of "semetic inspiration" and a form of Kulturbolschewismus or "cultural Bolshevism." He also created the Kunstchamber, responsible for excluding Jews, Communists and other "enemies of the state" from the art market. The National Socialists claimed that because modern art and abstraction accepted seemingly everything (such as sex, war, or non-tangible concepts such as life, dissent, death, indulgence, and ambiguity) as a "suitable" subject matter, the "pure" and "good" subject within art were, in the eyes of the modernists, "relegated to the same level as the ugly, the base and the erotic," resulting in amoral art. Expressionist works of naked prostitutes done by Ernst Ludwig Kirchner were considered pornographic and therefore a threat to the fabric of the nuclear household. Modern art legends Paul Klee, Ernst Barlack, Lionel Feininger were all removed from the collection of Schlossmuseum in Weimar. Oskar Schlemmar's works in the Bauhaus were all destroyed. The Nazis fired "subversive" art teachers and professors, criminalized showing modern art in exhibitions and even the practice of modern art, as well as destroyed paintings and threatened artists. This hostile climate impacted many of this period's most famous Expressionists, who today are all recognized as change-makers and leaders in the modernist canon. Under the Third Reich they were considered "art criminals," part of an organized attempt by the Communists and Jews to "create cultural and political anarchy by undermining traditional values."

"Couple in a Room," Ernst Ludwig Kirchner, 1912

What Hitler was interested in was traditional art, works that mirrored the goals he imagined for German society. Art in his eyes was for the purpose of uplifting the state, of being comprehensible, of being "good, beautiful, and healthy." Popular subject matters included mothers and women as entities who would extend Aryan lineage, laborers who uplifted the republic, soldiers who fought on behalf of the Reich, as well as classically inspired bronze sculptures by Arno Brewer and Josef Thorak. But und Boden, or "race and homeland," were Hitler's ideal artistic subjects. The National Socialists' taste was not limited to German artwork, however. Works of the Renaissance and created by the "Old Masters" were also highly sought after. And This is where Jacques Goudstikker comes back into our story. Once Goudstikker had fled the country and died, Hermann Göring, Hitler's right hand man, sent his personal curator, Andreas Hofer, to Amsterdam at the advice of Dr. Kejetan Muhlmann. Muhlmann was responsible for the sale of Dutch Jews' property during the war, and recognized Holland for its rich selection of Dutch works, all desirable for the Nazis - and what made Amsterdam a profitable location for them was the high concentration of Jewish art collectors there. With no one to protect these collections as Jews fled persecution across Europe, Amsterdam became a free-for-all. Hofer, on his trip to Amsterdam, discovered Goudstikker's extensive collection, notified Göring, and within the month, the majority of the collection had been shipped to Germany. Because Goudstikker's work was absolutely emblematic of the Nazi's "standards" for art, and in fact, exceeded them, the paintings were divided up for different purposed; many works were transported to the Linz Museum in Austria, where Hitler was "curating" a collection of his favourite works in the museum in his hometown alongside Hanz Posse, the director at Linz, and many of them simply went to Göring's personal collection, a testament to his deep greed for grandiose, exquisite ornamentation at whatever cost. Others were sold for prices frankly offensive to the paintings themselves, devaluing them and therefore discrediting the financial rapport that Goudstikker had worked to accumulate and hoped to extend. I want to bring up, for the second time in this article, the name Einsatzstab Reichleiter Rosenberg, or the ERR, an organisation responsible for the theft of art across Europe on behalf of Hitler and who plundered 21,000 works of art. The sheer volume of stolen works during this time, the manner in which they were stolen, and the social and cultural erasure of Jewish identity all factor into a pressing problem the art world has run into today: where did the stolen art end up? How was it devalued? Who really owns it, if its original owners were murdered by the Holocaust?

After the war, an American intelligence agency was specifically assigned to investigating art restitution and looted art's origins. When coming across Goudstikker's collection, the Americans returned the work to the Dutch government under the assumption they would care for it and find its original owner, but when Goudstikker's wife returned to Holland and attempted to retrieve the collection, her efforts were futile. She died shortly after, leaving the collection once again misguided. It sat, until fresh attention was turned on to it in 1997 by Dutch journalist Pieter den Hollander, beginning a long and tedious restitution process involving Goudstikker's grandchildren. By 2005, a Dutch court ruled that 200 paintings, which were scattered across national art institutes as well as private collections, should be returned to the family, now living in the United States. Christie's and Sotheby's, who both had acquired paintings from the collection unknowingly in bad faith, returned them to the grandchildren in separate restitution cases. Objectively, justice was served. But Goudstikker's looted collection was made up of 1,400 paintings by Renaissance Masters, its valuation reaching upwards of hundreds of millions of dollars. And in 2005, ninety percent of this collection was still not under the control of the family.

Adam and Eve by Lucas Cranach the Elder, 1530

Marei von Saher, Jacques Goudstikker's granddaughter, filed a legal complaint in 2007 against the Norton Simon Museum who, in 1971, had purchased Adam and Eve by Lucas Cranach the Elder, made in 1530. The two panelled pieces were originally apart of Goudstikker's collection, and were just two examples of works that got tossed to the wayside, acquired by European dealers, and sold off to the states. The works' valuation is in the tens of millions of dollars. The museum claimed that von Saher was time-barred from her claim because the statute of limitations had expired, but the claim was ruled timely by the Commission for Art Recovery due to California Code of Civil Procedure 354.3, "which extended the limitations period for the recovery of Nazi looted art in museums and galleries until December 31, 2010." The case is ongoing, but the court has found von Saher's claims to be legitimate and timely. The von Saher case, along with the several others that were revisited in the early 2000s, set a new precedent for art law specifically related to the statute of limitations because of the intricacies and deep-seated historical traumas related to Nazi art theft. Furthermore, the legal biases and hardships that Desi Goudstikker, Jacques Goudstikker's wife, endured in the initial restitution cases in the '40s were a large deterrent in regaining autonomy over the collection. These procedures, even after the Holocaust, were "generally... legalistic, bureaucratic, cold, and even callous." This props up von Saher's argument in extending the statute of limitations because the original restitution case was dismissed due to this - therefore, she has claimed, the family is owed a fair trial in the U.S.

The world of art law has had to shift its perspective and bend its rules to accommodate for the contextual intricacies in Nazi art theft and its subsequent restitution cases. These cases set new precedent for ownership law in that the courts are now forced to look at ownership with a macro lens, trace paintings' lineage back to its original owners, and rely on updated statutes of limitations to determine ownership legitimacy. But regardless of the passage of time itself, the court must take into account historical traumas and specificities which block justice from truly being served. In this way, I am hopeful for the future of art law, in all its flaws, because of its flexibility and ability to value historicism.