This Note considers the legal issues relating to innocent buyers of looted art. After providing some historical background on the massive displacements of art that took place during World War II, the Note surveys recent developments, including the different types of disputes that have arisen in the past few years. It then provides a legal framework for analyzing one type of dispute, that of the innocent buyer of looted art.
Original owners face difficult evidentiary burdens and other litigation barriers, but law and policy nevertheless favor original owners above innocent buyers. In particular, courts have become increasingly impatient with the anarchy of the international art market and are prepared to impose a duty to search upon those who invest in valuable works of art. Under these circumstances, most disputes between original owners and innocent buyers are likely to be settled out of court. Moreover, the art world, in response to the duty to search, has begun developing title search methods and other title-related policies so future art buyers cart rest assured that they have not brought looted property.
Looting and pillaging have been a part of warfare for millennia. In addition to simple pillage by common soldiers, warring states have for centuries looted one another in a systematic manner.(1) Nevertheless, World War II was different. In one sense, the difference was only one of scale.(2) Hundreds of thousands, perhaps millions, of paintings, sculptures, drawings, pieces of furniture, religious objects, and other works of art were looted by the Nazi government from Jews throughout Europe and from state museums, churches, and citizens in Eastern Europe and Russia.(3) Most of these items were then sent back to Germany, where they were later found scattered in hiding places throughout the country.(4) The Nazi looting bureaucracy was well-organized, powerful, and answered only to the top leaders of the party.(5) The Soviet Army also systematically looted hundreds of thousands of artworks, as it marched into Germany, claiming them as reparations for its cultural property losses under the German occupation.(6) Other pieces of art were taken by American soldiers guarding German hiding places, by opportunistic art dealers who took advantage of their Jewish colleagues' positions, and by Germans who saw their chance in the chaos that accompanied the collapse of the Reich.(7)
Part Il of this Note will provide a brief historical overview of why and how this artwork was looted, what happened to it during and after the war, and how innocent buyers later purchased many of the looted pieces. Part III will discuss recent developments. In particular, this section will explore why it has taken so long for these issues to come to light. It will also give an overview of the various legal scenarios that exist in relation to ownership of looted art, including possession by a state or public institution, possession by an innocent buyer, and possession by a thief. Part IV will focus on one particular scenario--the innocent buyer of looted art--and will explore some of the disputes that have already arisen. Part V will focus on the legal issues relating to ownership of these works, and it will also consider some of the policy, equity, and evidentiary issues that arise in these cases. It will also explain why the courts are likely to be highly pro-owner in such cases, finding against innocent buyers, and it will argue that the pro-owner stance is an appropriate response by courts to the anarchic international art market. Finally, it will discuss some of the implications of that pro-owner stance, including the likelihood of out-of-court settlements in many of these disputes.
Adolf Hitler was an avid art collector, but his primary interest in art was related to his intent to build a great museum in the Austrian town of Linz.(8) He drew up the architectural plans for the museum himself.(9) The museum was to be a monument to Nazism, with several large buildings and a huge collection of artwork spanning European history and prehistory.(10) Nazi law gave Hitler the right to dispose of all confiscated artwork.(11) He had several agents charged with collecting artwork for the Linz museum, including Dr. Hans Posse.(12)
Hitler's second in command, Hermann Goring, was similarly ravenous for artwork but with different motives.(13) He considered himself a "latter-day Medici," and his country estate, Carinhall, was a showcase for the works he collected.(14) Goring was a double dealer of sorts, charged with assisting Hitler in filling the imaginary walls of Linz but also self-seeking in covering the walls of his own home.(15) He was a frequent visitor to the Jeu de Paume, where confiscated artworks were stored before being shipped back to Germany, and he often selected works for his own collection from among the Fuhrer's loot.(16) Goring's position and resources, including a private train for transporting confiscated property back to Germany, allowed him to commandeer the bureaucracies charged with confiscation, including the Einsatzstab Reichsleiter Rosenberg (ERR).(17)
The ERR was headed by Alfred Rosenberg, a leading Nazi ideologue, who was essentially charged with studying the enemy.(18) The ERR was initially established for the purpose of collecting Jewish religious objects and books for anti-Semitic research purposes, but it later became the primary organization for the confiscation of art.(19)
The Nazi looting of Europe was undergirded by Nazi ideology.(20) In justifying their looting, the Nazis pointed to the German treasures stolen during the Napoleonic Wars and World War I.(21) When they confiscated the possessions of French-Jewish dealers, they were retaliating against the enemies of Germany, and when they pillaged "Germanic art" from museums, churches, and private collections throughout Eastern Europe, destroying what they did not want, they were simply taking back what was theirs and destroying items of no value.(22)
Nazi ideology also determined which art was considered valuable.(23) Hitler did not like modern art, so the Monets, Cezannes, and Picassos that were so popular on the international art market were dubbed "degenerate art" and were only valuable to the Nazis as items they could sell or exchange for the art they preferred.(24) The art they considered valuable included Germanic art (though not modernist German art), as well as the work of many Dutch painters (though Rembrandt's fondness for Jewish subjects was troubling) and many French artists.(25)
The Nazi obsession with art began to manifest itself well before the war began.(26) In 1937, Hitler ordered German museums to clear their collections of degenerate artworks.(27) There were "Degenerate Art" shows in Munich and throughout Germany, and many of the works were then sold at auctions of degenerate art.(28) After a final auction in March 1939, the nearly 5000 degenerate artworks that remained were burned in a bonfire.(29)
The treatment of Jews in Germany deteriorated quickly after the Nazis came to power, of course, but the confiscation of personal property did not begin until Kristallnacht in November of 1938.(30) Soon afterward, confiscated art began to fill warehouses and museums throughout Germany.(31)
When the Germans invaded Austria on March 12, 1938, the Schutzstaffel (SS) immediately began confiscating the possessions of wealthy Jews like Baron Louis de Rothschild.(32) The more fortunate Jews, who had escaped before the invasion, had left behind many of their possessions, and those who remained were forced to register all their possessions with the Gestapo.(33) After the invasion, Jews were allowed to leave Austria only upon turning over their possessions to the Office of Jewish Emigration.(34)
In Austria and Western Europe, the Germans systematically confiscated only property owned by Jews.(35) In Eastern Europe, however, the pattern was different.(36) Because the Slavs were considered an inferior race, the Germans looted and pillaged private homes, state museums, and churches.(37) They took all the "Germanic art" that they could find and destroyed what they did not take.(38)
The Soviet Union was in particular badly looted.(39) Its museums were ill-prepared for the German invasion and were quickly stripped of the art that the Germans wanted.(40) What they did not want, they destroyed.(41) Palaces, museums, libraries, and churches were completely plundered and left gutted.(42) The numbers alone are mind-boggling: 427 Soviet museums were looted; 1670 Russian Orthodox churches were destroyed or damaged, along with some 500 synagogues.(43) Thirty-four thousand objects were removed from Peterhof in Leningrad and sent to Germany before the palace was destroyed; at Novgorod, 30,000 valuable books were taken.(44) The richest museums in the USSR together lost more than 500,000 items.(45) Moreover, many of the items that were taken were completely unique, including the beautiful Amber Room of the Catherine Palace in Pushkin.(46) The room's amber panels were dismantled by the Germans and sent back to Germany, and they have not resurfaced since the end of the war.(47)
When the Germans occupied Paris, they began systematically looting the property of French Jews, including several prominent art collectors and dealers.(48) In September 1940, the ERR was instructed to begin confiscating the property of Jews that had been "donated" to the French government for safekeeping by Jews who believed their possessions would be safer in the government's hands.(49) The Vichy government, seeking to appropriate for itself the property of Jews who had fled before the German occupation, nullified their citizenship, but the Germans themselves took advantage of that act to appropriate the property of these non-citizens.(50) In November 1940, Goring ordered the ERR to begin confiscating artworks owned by Jews.(51) The...